The Natural Law
Publication Year: 2012
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 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.
Heinrich Rommen (1897–1967) taught in Germany and England before concluding his distinguished scholarly career at Georgetown University.
Russell Hittinger is William K. Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa.
Published by: Liberty Fund
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Title Page, Copyright
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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, ...
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Part I: History of the Idea of Natural Law
I. The Legacy of Greece and Rome
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The doctrine of the natural law is as old as philosophy. Just as wonder,1 according to Aristotle, lies at the beginning of philosophy, so, too, is it found at the beginning of the doctrine of natural law. ...
II. The Natural Law in the Age of Scholasticism
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A new philosophy and a new world order did not follow at once upon the entrance of the Christian faith into the ancient world, into a sociocultural complex that was in process of dis solution and was addicted to somber mystical beliefs and practices. Indeed, precisely because of the advancing disintegration, or rather decomposition, of ancient society and culture, ...
III. The Turning Point: Hugo Grotius
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Among historians of philosophy the view prevailed for some time that Rene Descartes (1596-1650), a deus ex machina as it were, founded modern philosophy with its primary, indeed almost exclusive, concern with the thinking subject, with the study of individual consciousness and experience. ...
IV. The Natural Law in the Age of Individualism and Rationalism
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The so-called age of natural law did not, properly speaking, commence with Hugo Grotius. It began rather with Pufendorf, who undertook to expound the doctrine of Grotius. The net result of the age was a disastrous setback, from the opening of the nineteenth century, ...
V. The Turning Away from Natural Law
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The attack upon the idea of natural law came mainly from two quarters. It came, in the first place, from skeptics and agnostics like David Hume or from utilitarians like Jeremy Bentham (1748-1832) and their disciples. In the next place, it came from the leaders of the romantic movement, which was antirationalist and antirevolutionary ...
VI. The Victory of Positivism
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The attack of positivism proceeded from several quarters along an ever-widening and enveloping front. It came first from scientific empiricism, which was generally lacking in a sense of the normative. The conflict of ethics with sociology opened, so to speak, a second front. ...
VII. The Reappearance of Natural Law
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The genius of the legal sciences could not be detained for long in the arid waste of positivism. Bergbohm, who tracked down the natural law into all the nooks and crannies in which it was supposed to have hidden itself from positivism, found everywhere, even among self-styled positivists, natural-law thought patterns. ...
Part II: Philosophy and Content of the Natural Law
VIII. Being and Oughtness
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The history of the natural-law idea shows that there are many ways of clothing any system of ideal law with the appeal of the natural or the rational. In periods when the positive law, grown rigid, is no longer the order of justice that people believe in, but rather a means in the struggle of the ruling class to maintain its social and political power ...
IX. Intellect and Will
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The order perceived by reflective thought is not, however, a rigid, static order of motionless things. It is not external compulsion, a clocklike mechanism which, once wound, runs according to mechanical laws. The order conforms to the natures of the things. It is indeed an order of necessity for inanimate as well as for living but irrational creatures. ...
X. The Structure of the Sciences
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The realistic theory of knowledge is the basis both of the unity of knowledge and of the internal coherence and organic structure of the sciences. Despite all distinctions of objects or ways of experiencing and looking at the one reality, and notwithstanding all the differences of methods, the sciences form an integrated system. ...
XI. The Nature of Law
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It may be said with some exaggeration that the era of individualism was the first to pursue a philosophy of right or rights (in the subjective sense), whereas the preceding age had rather developed a philosophy of law. That would be especially justifiable were one to conceive right more as a subjective permission and power to demand, ...
XII. Morality and Law
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It is a universal conviction of mankind that morality is a higher norm than the positive law. This conviction is so universal that lawmakers and judges continually appeal to morality; and every revolutionary relies upon a moral, higher law of justice in his opposition to the positive law. ...
XIII. The Content of the Natural Law
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From a purely factual standpoint the history of the natural-law idea teaches one thing with the utmost clearness: the natural law is an imperishable possession of the human mind. In no period has it wholly died out. At least since the advent of Christianity, ...
XIV. Natural Law and Positive Law
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Legal positivism, that is, the theoretical rejection of the natural law according to form (as non-positive source of valid law) and content (as law contained in no positive norm), maintains that the natural-law doctrine represents a dualism which is inimical to legal security; ...
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Modern totalitarianism with its depersonalization of man, with its debasement of man to the position of a particle of an amorphous mass which is molded and remolded in accordance with the shifting policy of the "Leader," is of its very nature extremely voluntaristic. Voluntas facit legem: law is will. ...
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Page Count: 316
Publication Year: 2012