NATURAL LAW TODAY*)
But before Aristotle’s anthropological conservatism the Sophists had defended a radical legal positivism, as they considered the laws to be nothing but conventions, i.e. created by man just as the gods were created in the image of man. But the rational nature of man is just what enables him to change the transmitted customs by means of agreements. Platon’s strict élite society as well as Aristotle’s naturalistic theory of society were a protest against what they regarded as the unfortunate results of the vulgar democracy, which they thought to be the reason why Athens was involved in the Peloponnesian War.
It was Aristotle’s idea of nature that had the greatest influence on posterity; in the first place the Roman Empire through the stoic doctrine of a life in accordance with nature, which man follows in accordance with his reason (ratio) in the same way as things follow the laws of nature by virtue of necessity and animals by virtue of their instinct. The Roman jurists dealt with several theories of
”natural” normative connections (ius naturale) before the legal establishment of norms (ius civile). Even the nature of things (rerum naturae) and the nature of the human conditions of life make demands on the legal decision, just as the praetor’s power (bona fides) to renew the law was based on pre-positive demands for changes of the law by virtue of changes of the conditions of life.
But from time immemorial justice (iustitia) and equity (aequitas) had been regarded as corrections of the strict application of the law.
It is a well-known fact that Aristotle had divided justice into two categories: an original commutative justice (fair is fair) and a later distributive justice (social justice). The Stoics applied these thoughts on each individual being and demanded that morally and legally the individuals should be placed on an equal footing.
When Gaius speaks of ius gentium, he thinks of the common principles of law, which result from natural reason (ratio), and which can therefore be found in all existing legal systems. When later on Ulpian speaks of ius naturale he thereby understands something else and more abstract: suum cuique tribuere (to give everyone his due), which is also an old Greek idea handed down by the Stoics.3)
3) See Wolfgang Waidstein, Entscheidungsgrundlage der klassischen römischen Juristen, H.
However, Aristotle’s metaphysics also had a decisive influence on Thomas Aquinas and consequently on canon law and the later rationalistic natural law. In the first place Thomas accepted the anthropological conception of man and the necessity of the state as the natural institution for the achievement of security and justice.
Secondly, Thomas accepted a competence for man, based on his rational nature, to legislate for himself within the limits of the divine lex naturae. At the beginning of the 17th century this double conception of natural law is adopted by Hugo Grotius through the Catholic (Aristotelian) moral philosophy. Man has an appetitus societatis which forces him to try to realize himself in an organized society, and a rational nature which makes him quite suitable for self-legislation by agreement through a social contract as well as through private and international contracts.
Already in Samuel Pufendorf natural law more and more assumes the character of being a system in competition with positive law, – a system which at the same time limits and supplements positive law. This tradition culminates in Chr. Wolff, who emphasizes the moral obligation to perfect one’s faculties and spirit within the society. This material natural law conception of the law as a product of the society, the object of which is to develop man’s moral nature – incidentially found in Hegel4) – springs from Aristotle’s teleological anthropology. Conversely Kant, by empha
sizing the individual freedom, which is limited only by other human beings’ equal right to freedom, reduced natural law (the social contract) to a formal category, which was further emptied of its contents by Fichte and this smoothed the path for its contrast, the legal positivism, which dominated the legal thinking of the 19th century.
The same conclusion must be drawn from Hobbes’ social contract, which was a little younger than that of Grotius. Unlike Grotius’ social contract the former was based on a misanthropic conception of man which must be seen in the light of the unsettled
Temporini and W. Haase, Aufstieg und Niedergang der Römischen Welt II (15, Band 1976) p. 3 ff., P. Stein, Regulae Iuris (1966), see also Stig Jørgensen, Symmetry and Justice (I.e. note 1).
4) See R. Zippelius, das Wesen des Rechts (3. Aufl.) p. 72 ff.
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England of that time. Human beings in the state of nature are wolves, who ruthlessly fight each other and therefore in mere self-defence make a mutual agreement to place all the power in the hands of a sovereign king. But in Hobbes the king’s legislative power is nothing but a complete reflection of the citizens’ will and therefore completely voluntaristic, as it is based not on the lex naturae of the society, but on the citizens’ ius naturae, i.e. not an objective natural law, but a subjective natural right. Later Hume, Bentham, and Austin build their theories on this positive concep
tion of law by making human inclinations and – later with Stuart Mill – public utility the basis of an instrumental conception of law.5)
The paradox was, however, that rationalistic natural law, which was in fact based on an eternal and unchangeable natural law, led to great codifications in several countries among others in Prussia, Austria, and France. It was also a paradox that, nevertheless, by rejecting the natural law and the codification idea and acceding to a historico-organic conception of law instead Savigny through his jurisprudential work created the foundation of the following legal
positivism and finally of the BGB.6)
Already in the middle of the 18th century Montesquieu had emphasized that the law must be in accordance with people’s natural needs, but must also depend on geography, climate, religion, and economic conditions. Thus, at the same time he had reformu
lated the classic Thomistic idea of the static (primary) and dynamic (secondary) character of natural law7) and revived the Roman comparative ius gentium. In doing so he had actually founded the comparative jurisprudence and anticipated the historic legal school.
In fact the laws (les lois) are a manifestation of the necessary connections derived from the nature of things (nature des choses), and these laws control both God, the physical world and the conditions of animals and human beings.8)
5) See Stig Jørgensen, Legal Positivism and Natural Law, supra p. 103.
6) A rth ur Kaufmann, F.C. v. Savigny (infra n. 25), cf. note p. 9.
7) A. Verdross, Statisches und dynamisches Naturrecht (1971).
8) De L’Esprit des Lois (par Gouzagne Truc) Tome I (1956) ch. 1 - 3 .
Montesquieu calls these necessary connections between law and society the spirit of the laws (Vesprit des lois). These connections, as mentioned, refer to the nature of man: On one hand the emotional needs for self-preservation, propagation, security and the needs for living in societies, on the other hand human reason (raison humaine). But they also refer to the nature of things, i.e. the special conditions of life, under which the population lives. The most natural social order is the one that best corresponds to the conditions, under which the population lives, no matter if it is despotism, monarchy or democracy.
This basic idea, which is rooted in antiquity can be seen again in A. S. Ørsted, who rejected the rationalistic natural law, but found that the positive law should be supplemented with an unwritten natural law based on the natural sense of justice, common sense, the demands of civil life, the legal objects and the citizens’ traditions.9)
Knowledge of the nature of things and experience from civil life are to direct the jurists when analysing such legal matters which arise out of the needs of civil life and the mentality of the nation.10)
According to this conception natural law is not a super-positive, speculative and unchangeable set of legal rules, but a number of principles, deduced from the concrete social conditions and the political legislation, for the interpretation and supplementing of the law in a certain society. Although Ørsted rejects a metaphysical and a priori natural law, he believes in the existence of such norms, whose validity could hardly be contradicted by any legally learned person. It appears from the context that Ørsted also here has different societies in mind, but with a more or less common mentality; for instance he refers to the position of monogamy in Christian states (I.e. p. 84 ff). It is not quite obvious how far he goes in accepting a ius gentium based on man’s general nature.
However, the connection with the classic doctrine of the nature of things, the conditions of life and their alterations, the sense of
9) Håndbog over den danske og norske Lovkyndighed I, (1822) p. 83 ff. especially p. 90, 293 ff. and 349 ff.
10) On this subject see D itlev Tamm, Fra ” Lovkyndighed” til ” Retsvidenskab” (19 7 6 ) p.
393 ff.
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justice and equity (p. 115 ff.) and common sense lies near at hand, although he does not himself state any sources. When he refers to the spirit of the legislation (p. 293) and the grounds of the law as a means of interpretation, he thinks of this specific provision and the other provisions of the legislation as well as the considerations of the rational intentions of the legislator and the consequences of the law, and not only of the motives manifested.