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A question on the origins of natural law by greco roman philosophers

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. For Rommen and many others of his generation, totalitarianism provided that occasion. 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.

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? He distinguishes between two different kinds of positivism.

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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 the seemingly more modest project of studying and describing the law just as it is, without recourse to metaphysical or even moral analysis.

He allows that so-called analytical jurisprudence can be subtle and refined. 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.

Beginning in the late 1930s and through the 1950s, there was a renascence of interest in natural law—one that corresponded almost exactly to the American careers of the European intellectuals who had fled the chaos of Europe.

Consequently, they were able to introduce Americans to a more classically oriented philosophy and taught a new generation of students in law and political philosophy to Edition: Arguably, they rescued the American departments of political science from positivism and behavioralism.

After stints at small Catholic colleges, Heinrich Rommen became a member of the faculty at Georgetown. The rest of the cohort of Europeans tended to cluster at three other universities.

Waldemar Gurian and F. Hermans came to the University of Notre Dame in 1937. In the brief course of five years, therefore, the New School, the University of Chicago, and Notre Dame became, in a curious way, sister institutions. Political philosophy was pursued in the light of the ancient and medieval traditions, with a multidisciplinary breadth that was distinctively continental.

In hindsight we see that the advent of a conservative intellectual Edition: Among other contributions, for present purposes, they called attention to the perennial debate over natural law. With respect to the problem of natural law, what did these Europeans find upon their arrival? The answer is that, in the first decades of this century, American thinkers had given relatively little attention to natural law.

If natural law was a question on the origins of natural law by greco roman philosophers mentioned, it was usually in the context of theories of jurisprudence rather than philosophy or political philosophy and even then in a derisive or dismissive tone.

At the same time, American legal theorists and jurisprudents resisted the pure positivism entrenched in England and in some legal cultures on the Continent. Nor for that matter were the Americans satisfied with a formalistic treatment of legal rules. Having jettisoned both the classical and modern theories of natural law, the American legal mind was forced to turn elsewhere for an account of the extralegal bases of law.

While not fully reducing law to social policy, sociological jurisprudence took the first step in that direction. Legal realists, including Karl Llewellyn and Benjamin Cardozo, took the argument further, contending that judges make law ius facere rather than merely discovering it ius dicere. To them, law is to be made after considering multiple social, economic, and political facts. Although it might be doubted that these schools of jurisprudence rescued American law from the clutches of positivism, certainly they depicted the law as something more complicated and dynamic than the command of a sovereign; at least temporarily, these schools of jurisprudence satisfied the quest to have positive law rooted in something more than itself.

The theories were tailor-made for a people agnostic about metaphysical truths but irrepressibly earnest in pursuing the tasks of progress and social reform. There were, of course, notable exceptions to this rule.

Like the advocates of sociological jurisprudence and the legal realists, they were interested primarily in what judges do. To be sure, until the 1890s there was relatively little reason for judicial review to ignite debates over natural law. For example, in federal cases adjudicated during the early years of the Republic, the theme of natural law arose infrequently and even then only indirectly. Admittedly, the federal courts of the nineteenth century did face problems of natural justice in connection with slavery.

Even so, most federal judges enforced the written terms of the fugitive slave clause. Abolitionist enthusiasm for natural justice found expression in the legislative rather than the judicial arena.

In the 1890s the Supreme Court embarked on a new interpretation of the due process clause of the Fourteenth Amendment. This is easily explained. At that time, the judicial discovery of natural rights was perceived not only as antipopulist but as contrary to social reform. By their advocates, these newly discovered rights were deemed to be bulwarks of individual economic liberty, upheld against the policies of social reform enacted by state legislatures in the early part of this century, and then by the New Deal Congress during the Depression.

In defending individual property rights from the bench during a time of economic crisis and dislocation, the Court made natural law appear contrary to the common good. Here, of course, we are not passing judgment on that jurisprudence natural law theory, after all, is typically used to check legislative will, whether of kings or of democratic majorities ; rather, we are explaining why a very interesting episode of natural law reasoning in the 1930s fell flat.

Not only in America, but even more so in Europe, there prevailed a popular urge to remove whatever was deemed an impediment to strong legislative and executive action in addressing the crises of the decade. In any event, with the retirement in 1938 of Justice George Sutherland this era of judicially enforced natural rights came to a close. On this matter, two points need to be made. First, Rommen was not trying to insinuate himself into a debate over American constitutional law.

He shows little or no awareness of the currents and riptides of debate over use of natural law by the Supreme Court. Rommen refers to the institution of judicial review in order to make the philosophical rather than constitutional point that the mere fact that a law is posited by the will of a lawmaker is neither the first nor the last word in what Edition: Thus, for many Europeans like Rommen, 20 the discovery and defense of individual rights by the United States judiciary, especially in the face of a public emergency like the Depression, certainly appeared to be evidence of a tradition lost in Europe.

The renascence of natural law theory in the 1940s and 1950s owed little to this rather specialized issue of judicial review; if anything, it had to overcome an allergic reaction to that subject. Consider, for example, the first round of publications produced by these thinkers: In these books the problem of the moral foundations of law and politics are treated speculatively, broadly, and, for lack of a better term, classically. They agreed, for example, that the origins of modern totalitarianism are to be found in the Enlightenment; they also agreed that the Romantic Edition: Yet it would be a mistake to suppose that their common interests and overlapping research programs amounted to a common doctrine of natural law.

Leo Strauss, Eric Voegelin, and Catholics like Rommen, had distinctively different approaches to the subject. First, Rommen, Simon, and Maritain shared a philosophical vocabulary that was rooted in scholastic thought, specifically in the work of Thomas Aquinas.

Second, for the Catholic thinkers the philosophy of natural law was a living tradition: Third, the Catholic thinkers were more confident in building and deploying a system of natural law. Not only Heinrich Rommen, but also such well-known Thomists as Jacques Maritain and the American Jesuit John Courtney Murray wanted to rescue the concept of natural rights from what they deemed the dead-ends and errors of modern philosophy—a project that was a contradiction in terms to many, if not most, of the writings and students of Leo Strauss.

At midcentury, then, these Catholic thinkers were confident that the crisis of the Second World War provided an opportune moment for reconsidering democratic institutions in light of traditional natural law theory.

The word scholasticism derives from the dialectical method of the medieval schools, in which the dicta of authorities auctoritates in matters of theology, law, and philosophy were submitted to a very complex and open-ended form of systematization. Beginning with the Edition: The scholastic method was in part the legacy of the legal revolution of the twelfth century, when the Roman Catholic Church, having secured its legal autonomy from the Carolingians, consolidated its independence by systematizing ecclesiastical customs and legal rulings.

In about 1140, for example, Gratian, a Camaldolese monk from Bologna, produced the Concordantia discordantium canonum Concordance of Discordant Canons. Comprising some four thousand different texts and authoritative dicta, the so-called Decretum Gratiani formed the first part of what eventually became the Corpis iuris canonici the Code of Canon law.

His method of reconciling, or harmonizing, diverse opinions became a model for a question on the origins of natural law by greco roman philosophers golden age of scholasticism in the schools of the thirteenth century. Though he was well aware of the emerging legal systems of both civil and canon law, Thomas was not professionally trained in the laws. He was, instead, a Dominican theologian.

In all his writings there is but one discussion of law for its own sake; this is found in the prima-secundae I-II of the Summa theologiae, questions 90 through 108. Whereas his Summa theologiae consists of more than five hundred discrete questions, only one is devoted exclusively to the lex naturalis.

It is written serenely and in a manner that a modern reader might regard as understated, but it is all the same a tour de force.

During the period of late scholasticism roughly, the sixteenth and seventeenth centuries Dominican and Jesuit theologians resurrected Thomas in order to respond both to the Reformation and to a series of international political crises. These crises were brought about by new and potent expressions of royal absolutism on the part of Protestant and Catholic sovereigns and by moral and political conflicts ignited by their colonial policies in the New World.

In a period of civil wars and domestic disturbance, theories of royal absolutism were geared to enhance executive power. It is the recurrent story of natural law theory that it crops up precisely when the political order removes barriers to legislative and executive will. Such is what happened during the Baroque era, where these issues were debated in the seminaries and in the courts of the Hapsburgs.

Two centuries before the American Revolution, and nearly three centuries before the American Civil War, issues of political self-determination and slavery were debated in terms framed by Thomistic natural law theory.

For example, the Dominican theologian Francisco Vitoria argued successfully for the natural rights of native peoples in the Indies and developed exacting criteria for the use of war by nations. His lectures, called the Relectiones 1527—40influenced Hugo Grotius and Edition: Consequently, the transition from medieval doctrines of natural law to modern conceptions of natural rights was achieved in no small part by Spanish scholastics.

Leo called for a return to the primary sources of scholastic philosophy, especially to Thomas Aquinas. The first was scholarly attention to original texts, which in turn led to fresh interpretations of the premodern natural law traditions.

Greek Theory of Natural Law

The second, and somewhat opposite tendency, was a lively interest in making the old traditions relevant to contemporary political and legal problems.

Indeed, it was the combination of the two that made neo-Thomism the most creative period of scholasticism, which flourished in the absence of anything resembling the medieval schools. Papal encyclical letters became another significant transmitter of the scholastic tradition by setting forth in brief form the principles that ought to apply to controverted issues of social, political, and economic policy.

Rommen was imprisoned by the Nazis precisely because of his efforts in behalf of just such encyclical teachings. Pope Leo XIII himself issued more than eighty such encyclicals that addressed social issues such as the rights of workers and church-states relations, as well as more philosophical questions such as the origin of political authority. As Europe moved through the crises of the First World War, the Depression, the rise of Fascism, and the Second World War and its aftermath, the encyclicals became an increasingly important source of Catholic thinking on political matters.

Two points need to be made about the social encyclicals. The first is that these encyclicals produced an extensive body of applied natural law on issues both great and small, from the problem of socialism and rights of private property to the morality of dueling. The encyclicals provided a model for integrating two philosophical perspectives that had not been successfully unified in scholastic natural law doctrines. Perhaps the greatest achievement of Rommen and the other European neo-Thomists of his era was to decouple the traditional doctrine of natural law from the nineteenth-century conservative reaction against the constitutional democracies born in the age of revolution.

Rommen divides The Natural Law into two parts, historical and systematic. At the outset, Rommen poses his central question: The perennial question Edition: Answers to the question of how law binds free agents gravitate toward one of two poles, which Rommen characterizes as lex-ratio versus lex-voluntas. For Rommen, natural law thinking has always thrived in the lex-ratio tradition.

Ancient Political Philosophy