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Return of the Natural Law

“Justice being taken away, then, what are kingdoms but great robberies? For what are robberies themselves, but little kingdoms? The band itself is made up of men; it is ruled by the authority of a prince, it is knit together by the pact of the confederacy; the booty is divided by the law agreed on.” (Augustinus, De civitate dei, IV, 4, 1)

During the 19th and 20th century, we have seen countless examples of this statement by Saint Augustine. From the massacre of the family Romanov in Russia to the security camps in Pol Pots Cambodia, governments have reigned with terror over their people. Few people do not seem to have the moral intuition that this is plainly wrong.

As Gustav Radbruch writes in his 1947 article, there are two ways for governments to act unjustly: by breaking their own laws and also by the creation of laws that are unjust in themselves. (Gustav Radbruch, “Die Erneuerung des Rechts,” Die Wandlung. Eine Monatsschrift 2 (1947): 8–16.)

While the modern “Rechtsstaat” (“rule of law”, lit. “state of laws”) has some safeguards against the first kind of injustice – separation of power, appeal systems in courts, etc. – the law positivistic understanding of “law is law” turned out to be utterly powerless against the second kind of injustice. Worse still, the production of unjust laws does not seem to be restricted to totalitarian or authoritative regimes either. Countries like the United States of America or the Republic of South Africa had racial segregation laws in their books (Jim Crow Laws in the U.S.A. from 1865 to 1964/65, Apartheid in S.A. from 1948 to 1990–96).

In the wake of the Second World War and in plain view of the atrocities the Nazi regime had committed, people were longing for justice to be restored, but how can you judge crimes committed by law? The victorious allied powers answered this question by establishing the Nuremberg Tribunal and by charging the Nazi leaders for “CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population […] whether or not in violation of domestic law of the country where perpetrated.” (International Military Tribunal Nuremberg, Trial of the Major War Criminals Before the International Military Tribunal. Nuremberg 11 November 1945 – 1 October 1946, vol. 1, Nuremberg, 1947, 11.) They were enforcing a “law of humanity” that was different and higher than positive law, in other words: natural law. Another example of this is the famous trial of Adolf Eichmann before a court in Jerusalem. Again he was charged with crimes against humanity. (Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. Penguin Classics. New York, N.Y: Penguin Books, 2006.)

In 1948, the general assembly of the United Nations adopted the Universal Declaration of Human Rights (UDHR). This document again speaks of “the inherent dignity and of the equal and inalienable rights of all members of the human family”, and calls for positive law to protect these “natural” laws of humanity. (Universal Declaration of Human Rights, Preamble.) When the Parlamentarischer Rat (the West German constituent assembly) enacted the German constitution in 1949, they referenced the UDHR in article 1 as the foundation of human community, peace and justice. They declared it to be positive law and binding for every civil power. (Grundgesetz für die Bundesrepublik Deutschland, Artikel 1.) In article 20 they declare the executive and judicative branches to be bound by law and justice (“die vollziehende Gewalt und die Rechtsprechung sind an Gesetz und Recht gebunden”, Grundgesetz, Artikel 20.)

Article 20 of the German constitution makes another provision that answers the question of “Who do I appeal to if natural law is broken?”. Naturally, if the government and courts of my country are acting contrary to natural law, I cannot appeal to them, and most of the time, no foreign powers will be fighting an all-out war against my government. In this case, article 20 permits the German people to resist and fight against the unjust government if all other methods have failed. (Grundgesetz, Artikel 20.)

Even Saint Thomas, who otherwise ranks obedience as a special virtue above other virtues and sedition as a mortal sin, allows for civil disobedience in the case of tyranny. He does, however, postulate that all other options to deal with the unjust tyranny have to be exhausted and that the damage done to the common good by the uprising cannot exceed the damage done by the tyrant. (STh II-II 104.2a and STh II-II 42.2) We encounter these ideas again in the three principles of civil disobedience that Mahatma Gandhi followed to end the colonial oppression of India: 1. respect the general rule of law while disobeying the specific unjust law, 2. plead guilty to the violation of the unjust law, and 3. attempt to convert your opponent by demonstrating the justice of your cause. (Nick Gier, “Three Principles of Civil Disobedience,” accessed May 15, 2021, https://www.webpages.uidaho.edu/ngier/civil.htm.) The first two of these principles show respect for the rule of law in general, the third appeals to the practical reason and conscience of the people upholding the unjust law, and therefore for the power of reason to recognise natural law.

This peaceful civil disobedience has had remarkable success in many cases (the end of segregation laws in the U.S.A., colonial oppression in India, the socialist oppression in eastern Germany etc.), but does it mean “that violent conduct (which includes the destruction of lives and properties) is never the answer to an unjust government. However, it is fair for individuals to non-violently protest an oppressive government as argued by Nelson Mandela (post incarceration) and Henry Thoreau” as Timothy Oladehinde Jiboku concludes? (Timothy Oladehinde Jiboku, “Resistance to an Unjust Government: A Case Study of Apartheid in South Africa,” Journal of Contemporary African Philosophy 2021, no. 1 (2021): 6–11.) Can a regime that has “succeeded in turning the legal order on its head, making the wrong and the malevolent the foundation of a new ‘righteousness’” (Amos Elon, “The Excommunication of Hannah Arendt,” in Eichmann in Jerusalem: A Report on the Banality of Evil, Penguin Classics (New York, N.Y: Penguin Books, 2006), xiii.), as the Nazis did in Germany be stopped by peaceful civil disobedience?

There seems to be a practical necessity for natural law, lest we fall into the unjust chaos of totalitarian tyranny, but does that make a good argument for the theoretical truth of it? As Josef Pieper writes, “we cannot philosophise to chase practical goals.” (Josef Pieper, Buchstabier-Übungen: Aufsätze, Reden, Notizen. München: Kösel, 1980, 103.) The goal of philosophy can only be truth, not practical utility. What then is the truth of the natural law? When confronted with unjust positive law, there appears to be an outright need for justice. Can such a need exist if there is nothing to fulfil it? Can a cow need grass if no such thing exists?

For Holm Tetens, this need gives rise to his ‘moral argument’ for the existence of God. It might be worthwhile to follow this thought. (Holm Tetens, Gott Denken: Ein Versuch Über Rationale Theologie, Reclams Universal-Bibliothek, Nr. 19295. Stuttgart: Reclam, 2015.)

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Objections to the Natural Law

Today, the idea of a universal natural law faces many objections, some of those more fundamental than others. As Leo Strauss says in the introduction of Natural Right and History, “present-day American social science, as far as it is not Roman Catholic social science, is dedicated to the proposition that all men are endowed by the evolutionary process or by a mysterious fate with many kinds of urges and aspirations, but certainly with no natural right.” (Strauss, Leo. Natural Right and History. Chicago: Chicago University Press, 1953, p. 2) What was the case for American social science in 1953 holds for social science in general in 2021. I am inclined to further qualify Roman Catholic social science as the followers of St. Thomas Aquinas are dwindling in that profession as well. 

Aquinas' whole natural law theory rests on two fundamental premises: the first principle of natural reasoning, which is: “The good should be done and pursued, and the bad should be avoided.” and his definition of the good as “what all things desire” (STh I-II 94.2c). We find our first objection in this very foundation. In today’s diverse and pluralistic society, it seems impossible to identify any common ultimate desire, let alone “the vision of the Divine Essence” (STh I-II 3.8c) as that ultimate desire.

Saint Thomas can make this fundamental assumption because he believes that “every being in any way existing is from God” (STh I 44.1c) and that “the divine goodness is the end of all things” (STh I 44.4c). In an increasingly atheistic or agnostic society, not many people will accept this premise. 

According to Aquinas, it is the “light of natural reason, by which we discern what is good and what is bad” (ST 1-II 91.2c). But at the end of the 18th century, philosophers as Kant and Spinoza “raised a very disturbing question in many minds: why should we listen to our reason if it undermines all those beliefs necessary for the conduct of life?” (Beiser, Frederick C. The Fate of Reason: German Philosophy from Kant to Fichte. Cambridge, Mass: Harvard University Press, 1987, p. 2) The philosophers of the age of meta-criticism found that reason dictates to distrust the authority of reason itself. Today, this leads to three different objections to the natural law theory: 

  1. There is no universal truth at all.
  2. There is no universal truth about morality. 
  3. There might be some universal truth, but we have no way to gain knowledge of it.  

In his lectures, Strauss calls a similar form of objections the “historical approach”: There is no universal natural law throughout history because human thought only is valid in its historical context. The right of the Roman pater familias to kill his children was just in the historical time and place, but it is unjust today. At the same time, homosexuality was a capital offence in the divided kingdoms of Israel, but it is legal today. According to Strauss, this historical approach comes in two flavours: 

  1. The classical view accepts that nature is superior to a human convention but says that all laws are convention.
  2. The modern view denies this idea of nature altogether. (Strauss, Natural Right and History, pp. 9–34)

Modern social sciences, ethics and law make a distinction between judgments of fact and judgments of value. They declare themselves only to be concerned with facts and relegate decisions about values to conventions. Law students try to understand laws, their history, the original will of the lawmaker, and how to apply them to a given situation. They do not make value-judgements about the justness of a law. (Strauss, Natural Right and History, pp. 35–80)

Aquinas did anticipate many of these objections. We can find his answers to them in the Summa Theologiae. The fundamental disagreements are different, though. If the world is not created by a rational being with a rational end in mind – if it is merely a product of randomness – how can there be a universal rational law? And if there is no universal law, how can there be individual human rights?

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Natural Law and Positive Law

In Germany, as with most countries on planet Earth, we drive on the right side of the road. We do this because of one line in a book called Straßenverkehrsordnung: “Fahrzeuge müssen die Fahrbahnen benutzen, von zwei Fahrbahnen die rechte." (STVO §2 (1), “Vehicles have to use traffic lanes, if there are two, the right one.") We would call that positive law. “Positive” because of the Latin word “positus”, the perfect passive participle of “pono” – to place, to put: The ministry of traffic has put it in place.

According to Thomas Aquinas, law “is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated." (STh I-II q. 90) Does his definition hold for our traffic law?

The obligation to drive on the right side of the road is an ordinance of reason. The goal is to reduce the number of traffic accidents, so it is safe to say that it aims for the common good. The German ministry of traffic has made this rule, and they have the care of the community in this regard. They have published it in the Bundesgesetzblatt to promulgate it.

There are two main differences between this positive law and the natural law: the author and the way of promulgation. Positive law is human law. The author is always either a human being (e.g. a king) or an institution made up of human beings (e.g. a parliament). Being of human origin makes it subject to change. The author of natural law is God, and that makes it part of the eternal law. The way of promulgation for positive law today is mostly by publication in some book or periodical. Contrarily, we have a natural capacity to recognize natural law: our capacity of practical reason. (STh I-II q. 94)

These two forms of law are not disconnected entities standing side by side. In his Defense of Natural Law, Robert P. George shows that “the positive law is derived from the natural law in two different ways." (Oxford, 1999) It can be a direct deduction of natural law into positive law like the prohibition of the killing of innocents. It can also be more indirect, like the obligation to drive on the right side of the road. Natural law does not prescribe the use of the right lane for vehicular traffic. It is, however, necessary for the common good that we should regulate traffic. The details of the regulation lie in the creative freedom of the lawgiver. This also means that we cannot consider human laws breaking the prescriptions of natural law as laws. 

Historically, we see first mentions of this concept in early Greek and Latin philosophy. “For Platon, justice has to concur with the nature of things and the soul." (Delhaye, Ph. “Geschichte des Naturrechts” in LThK2) Aristotle distinguishes between a right of nature and a right of law, as do the Stoics. Even though there is little evidence of natural law in scripture, Ambrose and Augustin have quickly adopted the pagan theory for the Church. While secular philosophers and political theorists have started to separate the spheres of morality and law since the Enlightenment, the Church has held on to the concept till the present day. The phrasing of Can. 1055 §1 CIC is an example of this: “The matrimonial covenant, […] which is ordered by its nature to the good of the spouses and the procreation and education of offspring, […]"

Since the 19th century, proponents of legal positivism reject this connection between a god-given (or otherwise pre-existing) natural law and the positive human law. (Häussling, J. M. “Rechtspositivismus” in LThK2) What remains is a theory of law with only formal conditions: Is the lawgiver he “who has care of the community,” and is the law promulgated? 

In the 20th century, events have put the legal positivist idea to the test. Without a universal law to check them against, the actions of the concentration camp death squads and the border guards shooting down families who were trying to leave the GDR would be lawful. But as we can see in these extreme cases, common sense seems to demand that laws hold up against some higher standard. With the Nuremberg Trials (1946) and the International Declaration of Human Rights (1948), natural law made a short-lived comeback.

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My Neighbours Are Back

A few years ago, my (human) neighbour cut off the top of a tree in his garden, right in front of my kitchen window. Not long after, a young stork discovered the tree and built a nest on top of it.

He managed to attract a partner late that year, and they didn’t have enough time to procreate. They did, however, improve a lot on his initial nest. Then, they went to their winter homes.

I don’t know if these storks migrated to Africa or if they relocated to a different part of Germany – many storks have stopped migrating to the south –, but come spring, they return to their nest in front of my kitchen window.

And every year but that first one, they raise a bunch of little storks while my camera is keeping watch. You can find some of the photos on Flickr.

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Pieper, Josef. Über die Liebe

There are some books, not many, that make me sad that I have read them. Not because I would feel that I have wasted my time reading them, but sad that I cannot read them for the first time again. Josef Pieper’s treatise on love is one of them.

He gives a broad overview of the many concepts we usually subsumed under the heading “love” and works out what all of them have in common and why some do not fit into the schema. Pieper’s language is beautiful, almost lyrical. It makes me wonder how it would have been to be able to study with him.

I will have to go through this book once more. There is a lot of useful information in this book that I want to extract for later use. I have seen a few interesting bibliographical notes that I need to investigate.

Pieper, Josef. Über die Liebe. München: Kösel-Verlag, 2014. 236 pages. ISBN 978-3-466-37064-1. Originally published in 1972. An English translation is available in the book faith. hope. love.