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Philosophy of Law The Catholic Lawyer Volume 3 Number 1 Volume 3, January 1957, Number 1 Article 12 Philosophy of Law William F. Cahill Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons This Book Review is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. BOOK REVIEWS PHILOSOPHY OF LAW, by Giorgio Del Vecchio, translated by Thomas Owen Martin. The Catholic University of America Press, Washington, D. C., 1953. Pp. xxiii-461. $6.50, cloth. Reviewed by WILLIAM F. CAHILL* Professor Del Vecchio's lectures on the his appraisal of Catholic writers. Yet, even Philosophy of Law are here published for in these essays, and particularly in that on the first time in English. Even before 1930, St. Thomas, there is to be desired a better when the first printed edition appeared in application of the author's acknowledged Italian, the lectures circulated widely and powers. His neglect to present, either in this spread everywhere the fame of their author. historical or in the later doctrinal section, They have since been translated into eight even a summary of the work of the Fathers other languages. The author's reputation for of the Church who adapted and developed broad inquiry, acute analysis and clarity of the natural law doctrines of the Roman exposition will be further enhanced by the jurists, seems a serious omission. Nor is it present lucid and graceful translation. a mere oversight, for he says "only in the age of the Renaissance . was the classic The introduction describes the concept doctrine reaffirmed according to which Law and functions of Philosophy of Law, indi- is derived from human nature independently cates its relations to other sciences, and out- of Theology".' That the classical doctrine lines its methods. In this brilliantly succinct never went beyond human nature, and that essay, one cannot fail to perceive a mind the Fathers and Scholastics made all depend whose breadth and profundity returns al- on premises of revelation, are implications ways to that disciplined harmony which is which the author does not attempt to justify. the hallmark of integrated education. No indication is made of the contributions The body of the work has two major of Gratian and other medieval writers to divisions. The first of these comprises over the development of the doctrine on custom two hundred pages devoted to a summary as a source of law. Bracton is not even history of the Philosophy of Law. The ex- named, and we feel he should be, both for pogitions of the teachings of the Greek phil- his recognized doctrinal contributions and osophers, of Grotius, Hobbes, Thomasius, for his enormous influence upon the devel- Rousseau, and Kant, are especially notable, opment of law in the English-speaking coun- as well for the accuracy of their material as tries. The presentation of modem writers for the clear precision of their expression. on the Philosophy of Law includes a useful The studies on St. Thomas Aquinas and list of names of writers and their works. Suarez are the best work of the author in For the nations other than Italy, there is little more. *A. B., Manhattan College (1932); J. C. D., Lat- eran University (1952); Professor of Comparative I DEL VECCHIO, PHILOSOPHY OF LAw 46 (8th ed., Law, St. John's University School of Law. Martin transl. 1953). BOOK REVIEWS The second major division of the work is the jurisprudential philosophies of Skepti- the "Systematic Treatise." It begins with a cism, Empirical Realism, the Historical section in which consideration is given to School, and Utilitarianism. the concept of law - a section so well or- From his statement of the ultimate ra- ganized as to be most interesting and in- tional basis of law, that law is an "a priori structive. The careful reader will note, form of the spirit," we dissent. Moderate however, that all absolute concepts, that of realism, asserting that experience is the ulti- justice included, are made to depend upon mate basis of all ideas - that the intellect 2 the Kantian postulate of a priori ideas. abstracts the universal from the particular While the importance of motive in deter- which is known by experience, cannot ac- 5 mining the juridical quality of acts is well cept any ideas as innate. demonstrated, the author goes too far when Del Vecchio calls "theologists" 6 all those he extends the field of law to all human who trace a necessary relation between God 3 actions, even internal ones. and the law. For him, the "theologist" point of view has two forms: it identifies law with The treatment of the origins and histori- the will of the divinity, or it postulates a di- cal evolution of law in the second section vine reason which determines what is just - of the "Systematic Treatise" covers only that determination is adopted by the divine twenty-four pages. The consequently com- will and must be accepted by men. He is not pendious quality of its statements leaves satisfied that either is truly rational, for the much room for distinctions, qualifications, first prescinds from reason, and the second additions and positive emendations, if the offends by invoking reason in reference to reader is to form an objective view of these the divinity which "is, by definition, absolute problems. and superior to reason, consequently it must In the last section of the "Systematic be accepted only as such, thanks to faith." Treatise," on the rational foundation of This view, that the existence and nature of law, Del Vecchio discusses the chief adver- God are not knowable by reason is, of saries of his position, and presents his own course, contrary to Thomistic philosophy views on "human nature as foundation of and even to Catholic doctrine. It has its law." To nearly everything he says of natural philosophical root in the Kantian view that law, and of its relation to positive law, we the principle of causality is valid only in the 4 7 can assent. As an "absolutist," he rejects world of phenomena. 2 DEL VECCIO, op. cit. supra note 1, at 252-255. It is true that much of Del Vecchio's phil- 3 DEL VECCHIO, op. cit. supra note 1, at 255-260. osophy of law, when it descends to more St. Thomas distinguishes thus: " . there is no virtue whose exercise the law cannot command. (1952); see also Book Note (3d ed.), 10 APOLLI- But human law does not prescribe all the acts of NARIS 301 (1937). all the virtues." SUMMA THEOLOGICA I-I, q.96,a.3, 5 The view here criticized was expressed in the c. (Emphasis added.) And the reason St. Thomas third Italian edition. See 10 APOLLINARIS 301 offers for this distinction is pregnant with impli- (1937). cations ".. to the political community, man is 6 Msgr. Graneris noted that Del Vecchio began, in not ordained in the totality of his being nor in the the fifth Italian edition, to use the term "theologist" totality of his resources." SUMMA THEOLOGICA I-II, instead of "theological" to describe these points of q.21, a.4, ad 3. view. 20 APOLLINARIS 148 (1947). 4 See Graneris, Book Review (5th and 8th ed.), 7 DEL VECCHIO, PHILOSOPHY OF LAW 432-433 (8th 20 APOLLINARIS 148 (1947), 25 APOLLINARIS 440 ed., Martin transl. 1953). 3 CATHOLIC LAWYER, JANUARY, 1957 particular problems, is acceptable to the the ultimate basis of law may find himself Thomist and the Catholic. Yet it would be worshipping idols. erroneous to assume that his metaphysical If we had in English an adequate litera- absolutism has no influence in his evaluation ture of the Thomistic philosophy of law, of matters which may seem remote from the present work would be most welcome criteriology and theodicy. When Del Vec- as illustrating interesting parallels erected 8 chio discussed the problem of whether a upon a different epistemological founda- man might ever, in any circumstances, dis- tion." But in the confusion of views and simulate, he was led - by his metaphysically expressions now prevailing in the English absolute commitment to truth -to deny that writings on natural law, one may be per- dissimulation is ever virtuous or even mor- mitted to suggest that by seeming to promote 9 ally admissible. In a work which clearly alliances which are ambiguous,"2 natural law manifested Del Vecchio's devotion to fascist philosophers may impede rather than ad- 0 theory, he discussed the need for a moral vance the development of jurisprudence on as well as a legal bond among the citizens a sound philosophical basis. of a state. And he described the moral bond 11 Of the eighth Italian edition Msgr. Graneris had in these terms: "an identity of wills, a true only this to say: "There is no need for us to discuss communion of minds, a single order of faith the work of Del Vecchio, for its acceptance is evi- in the civil religion of the Fatherland." It denced by the frequency of successive editions. His seems that a metaphysical absolutist who is doctrine is well known, and agrees with our own in many respects." 25 APOLLNARIs 440 (1952). offended by postulates of divine reason as 12 The reviews of earlier Italian editions of Del Vecchio's PHILOSOPHY OF LAW and of his other 8 DEL VECCHIO, VERITA E INGANNO NELLA MORALE works, pointed out the subjective character of his E NEL DIRITTO (1947), Palazzini, Book Review, 20 philosophical foundations.
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