Herman Dooyeweerd: Christian Philosopher of State and Civil Society

Appendix 2

318 Appendix 2 Dooyeweerd on natural law and legal Positivism dooyeweerd claims that his theory of the nature of law is an alternative to both legal positivism and natural law theory. The position he took in the 1920s and 1930s in this long-standing debate is distinctive (although the terms of the debate have, of course, changed significantly since then). Legal positivism, he holds, denies the inherently normative character of law and reduces it to its observable manifestations in particular legal systems, while the natural law theory needlessly posits a transcendent sphere of binding valid law in addition to positive law. Indeed he insists that there is only one kind of valid law—positive law— but that this ought to conform to normative legal principles inherent in the juridical aspect.1 Legal principles and positive law are not two independent legal systems but are inseparably connected and mutually presupposing .2 On the one hand, positive law without legal principles is a contradiction in terms, but on the other, the validity of legal rules depends on legal principles actually being positivized.3 The difference between his position and legal positivism is quite evident , but his critique of natural law theory, especially that of Thomas Aquinas, invites further comment.4 It is important to bear in mind that what Thomists term “natural law” embraces an entire metaphysic and is thus to be compared not simply with his analysis of the legal or juridical aspect but also with his whole ontology. Here, however, we are concerned with the specifically jurisprudential implications of natural law theory. appendix 2 319 Dooyeweerd’s view of natural law is of special interest since in his early writings he was ready to describe the Calvinist legal theory he sought as a natural law theory.5 By the time of WdW he had virtually abandoned the term, employing it only in a restricted and specialized natural scientific sense.6 Even in his early writings, however, he distinguishes a Calvinist view of natural law sharply from a Thomistic one. The Thomistic idea of natural law as the participation of human reason in eternal law issuing from the divine mind is ruled out by his Calvinist “law-idea” (wetsidee), which conceives law as an expression of divine will, an absolute boundary between God and creature.7 Later, he refines and supplements this critique with his new concepts of modal aspect and individuality structure.8 The former enables him more clearly to distinguish the juridical and ethical or moral spheres9 and to argue that irreducible divine norms apply in each. The latter he presents as an alternative to the metaphysical concept of substance, which underpins the teleological idea operative within Thomistic natural law theory. Finally, he gradually develops the notion that normative legal principles are “dynamic,” in contrast to the “abstract,” “static” principles of “scholastic” natural law.10 They are “dynamic” because the juridical aspect , like all aspects, participates in the cultural “opening process.” This implies two things. First, the requirement of positivization of legal principles is a necessary moment within the juridical aspect itself. It points to its historical analogy; indeed all positivization is, as noted in chapter 5, rooted in the historical aspect. New historical circumstances require new positivizations; for instance, the ban on interest in canon law was lifted when economic conditions changed.11 Second, new legal principles emerge, appearing when the normative anticipatory moments in the juridical aspect are disclosed.12 The idea that positivization is inherent in the very nature of law is central to his critique of Thomism as a “dualistic” theory (a critique that he acknowledges is indebted to Kelsen).13 The fundamental issue centers on the concept of validity. Thomistic natural law principles are different from what he terms “normative legal principles” in that they are regarded as “valid” irrespective of whether they have been established in positive law. This implies that there are actually two genuinely valid systems of law. Indeed, as Rommen, a defender of natural law, points out, it is 320 appendix 2 precisely because natural law principles are independently valid that they are seen by defenders of the Thomistic theory as capable of functioning as a normative criterion by which a positive law can be critically evaluated and, if in contravention of natural law, declared null and void; here natural law “breaks” positive law.14 The judicial nullification of many Nazi laws by German courts in the aftermath...