Haines: Revival of Natural Law Concepts: Chapter IX

PART IV

THE REVIVAL OF DROIT NATUREL, NATURRECHT, AND SUPERIOR LAW DOCTRINES IN THE JURISTIC PHILOSOPHY OF EUROPEAN WRITERS

CHAPTER IX

THE BACKGROUND FOR RECENT THEORIES OF NATURAL LAW AND THE GERMAN DOCTRINE OF A RECHTSSTAAT

1. Continuance of Natural Law Theories in Europe. A brief resume of the stages in the evolution of higher law concepts has shown that for centuries after the Reformation natural law theories, as expounded in the authoritative works of the time, were commonly accepted as the basis of law both public and private. When positivists' theories of law were gaining ground over mediaeval conceptions the American and French Revolutions gave an impetus to another version of the natural law theories and to the rechristened dogma of the natural and inalienable rights of man, which it was the prime duty of the state to protect. But the reaction which followed these revolutions tended to discredit the idea of natural rights both in Europe and in America. During the middle of the nineteenth century there was a decline in the emphasis placed on natural law thinking and on the importance attributed to higher law concepts. Throughout the nineteenth century ideas of higher law, however, had many supporters in Europe among jurists and statesmen.

Modern theories of law were greatly influenced by the contributions to philosophy of two German thinkers, Kant and Hegel. Kant sought to discover principles which were above all codes and legislative enactments and to furnish a criterion to estimate the validity of all legal rules.[1] Though Kant, like Rousseau, predicated certain limits to the powers of the state he also ended by conceding practically limitless power in the ruling forces of the state. His categorical imperative — "Act on a maxim which thou canst will to be law universal" — involved a combination of the idea of personal duty and of universal law. The state he conceived as a formula whereby the authority of the general will is made consistent with the perfect freedom of the individual will. It is only by means of a social contract after the pattern of Rousseau that such legal legerdemain can be consummated. But Kant's individualism prevented him from going to the limit of Rousseau in subordinating the individual will to that of organized society.

To Hegel the individual finds his existence in the state. The individual is free only by merging his will with that of the state. He rejected entirely the American and French doctrines of natural and inalienable rights. Liberty can be realized only through the state.[2] Like Rousseau and Kant, Hegel claimed that the individual has rights in the true sense only when they come from the state. While the philosophy of Rousseau, of Kant, and of Hegel tended in the direction of absolute authority in the state there were noteworthy lines of legal thought leading in the opposite direction.

Among the political thinkers of the early nineteenth century who sought to secure guaranteed juridical limitations upon the sovereignty of the state was Benjamin Constant, who claimed that sovereignty exists only in a limited and relative manner. At the point where the independence of the individual begins, he asserted, the jurisdiction of sovereignty ends.[3] He defended the natural and indefeasible rights of the individual which form the basis of the juridical limitations on sovereignty. "I maintain," he said, "that individuals have rights and that these rights are independent of social authority, which cannot curtail them without becoming guilty of usurpation."[4] He believed that the individual had a right to refuse to obey a law contrary to the incontestable rights and pointed the way to a supreme court whose duty it should be to preserve these rights and to prevent the public powers from encroaching on them.[5]

After the completion of the Code Napoleon a school of legal philosophers again recurred to the earlier natural law notions. The rules elaborated in the codes were thought to be derived from man's nature and were regarded as independent of observation and experience. These natural laws were considered universal and invariable and positive laws to be valid should emanate from them.[6]

Among the leading natural law exponents in the nineteenth century were Karl Christian F. Krause who conceived of law as a postulate of reason and based his philosophy of law and justice essentially upon the doctrine of natural law,[7] and Heinrich Ahrens, who accepted the philosophy of law of Krause and gave it wide circulation throughout Europe. His leading work,[8] originally published in French and German, passed through many editions and became the authoritative textbook of a modernized version of the ancient doctrine. To Ahrens the philosophy of law and natural law are interchangeable terms and comprise the science which analyzes the first principles of law as conceived by reason. This science is based on the belief common to humanity, that principles of justice exist independent of law and of positive institutions, suitable for adaptation to all of the changes to which human nature is susceptible. Ahrens distinguished between the will of the legislature (mens legis) and the reason of the law (ratio legis) which renders law in accord with the eternal principles of the true and the good. These higher or natural principles of law, he thought, are deduced from the nature and destiny of man.[9] The principles of the French Revolution developed in these works gradually introduced natural law ideas into the standard treatises and commentaries on French law.[10] Dalloz gives an extensive account of the natural rights which are regarded as belonging to man as an individual.[11] To Laurent "a right [droit] is anterior to a law; it is based on the nature of men and of civil societies... there is an eternal law [droit], an expression of absolute justice. This law or right [droit] reveals itself to the human conscience, in a measure as man approaches divine perfection. This law is progressive as are all manifestations of the human spirit. It tends continuously to realize absolute truth. It is necessary for the legislature to follow the progress which is made through the general conscience of man."[12]

Catholic or Traditionalist leaders repudiated the natural rights theories of the Revolution but predicated a higher law of another type. Saint Martin, De Maistre, De Bonald, Ballanche, and Lamennais set in opposition to the Declaration of the Rights of Man a Declaration of the Rights of God.[13] For these leaders of the Theocratic School political authority emanates from God and not from a mythical state of nature or from inherent qualities of the individual. To the rights of man De Bonald opposed as superior and paramount the rights of God and to the sovereignty of reason he opposed the sovereignty of faith.[14] The reconciliation of man to the ways of God was made under the directing influence of nature or natural rights as belonging to the individual, which appealed to the Traditionalists for they directed their attacks against eighteenth-century individualism and the doctrines of the Declaration of Rights. That there is no sovereignty is also the underlying principle of Royer-Collard's political theory.[15] In order to limit the powers of the state and in order to preserve individual liberty he regarded it necessary to discard the concept of sovereignty. Guizot, who supported the doctrine of limitations upon the state based on a higher law, was a follower of Royer-Collard.[16] In fact, Victor Cousin, Royer-Collard, and Guizot appealed to reason as a basis to support aristocracy and the rule of the wisest.[17] Since the Traditionalists made religion the basis of political stability and the following of the laws of God the first requisite for the rulers and the people in a well-ordered society, their doctrines were quite acceptable to a large group in French society which has always been influential in political circles. The modern revival of the Traditionalist type of thinking, which will be considered in a later section, justifies the comment of Laski that "the authoritarian tradition is far from dead."[18]

Except for the Catholic Schools there were few in France during the middle of the nineteenth century who publicly supported the theories of natural rights, which held such a prominent place during the French Revolution. In the latter part of the century A. Boistel, Beudant, and Henri Michel tried to revive interest again in the former ideas of individual natural rights.

Boistel used the philosophy of law, the law of reason, and the law of nature as approximately interchangeable terms.[19] Natural law or the droit rationnel was defined as "the group of rules which in the light of reason ought to be sanctioned by an exterior constraint." He regarded the principle at the basis of law which justifies its maintenance as "the inviolability of human personality."[20] From this individualistic principle he sought to develop an entire legal system.[21] This point of view led to an overemphasis on the individual moral personality and to a depreciation of the social and collective influences in the development of the law.[22]

Beudant, returning to the Declaration of Rights of 1789 and to the former schools of natural law, "based law upon reason, opposed individual rights to the state, and even exaggerated that opposition by seeing in every case of state intervention a restriction of individual rights."[23] Human rights, he thought, exist before the law and they are above the laws.[24]

After a survey of the political and economic thought of France during the nineteenth century in which one of the dominant ideas was the reaction against the individualistic philosophy of the French Revolution, Michel defends the essential doctrines of the individualistic school. He believes there is "an individualism based on the living sentiment and the dignity of the human person" which is at the very foundation of the social and political order.[25] State action, he thinks, must continuously be subordinated to the rights of the individual. "Individualism, as we conceive it, is alone capable of furnishing a rational foundation for the philosophy of law as well as for political liberty and for the sovereignty of the people."[26] Michel contended that not only was the state obligated not to interfere with the natural rights of man but it was also its duty to render positive services in the way of furnishing work, assistance, and instruction.

Boistel, Beudant, Michel, and other legal philosophers aimed to turn legal thinking again either to the natural law theories of St. Thomas, transformed to meet the conditions of nineteenth-century Europe, or to the inherent rights of man which, according to the Declarations, were above and beyond the sphere of state authority. But these efforts to restore higher law ideas to a measure of their former prestige and influence were not generally approved owing to the dominance of the Positivist concepts both in legal theory and in political practice. The attempts to turn legal thinking in the channels of natural rights as conceived by the leaders of the French Revolution and to emphasize again the rights of the individual proved futile at a time when political and economic thought was beginning to be dominated by a social point of view. It remained for a modern school of jurists to adapt the natural law concepts to radically different economic and social conditions.

By the end of the nineteenth century and the beginning of the modern era the efforts to revive natural law thinking interested so many jurists and legal philosophers in Europe that a revival of this mode of thinking has become a phase of a national and an international movement. The nature of this movement can best be comprehended through the presentation of some of the salient views of representative thinkers belonging to the new school. Though the representatives selected differ widely in their approaches to the problem and formulate divergent phases of the necessity of a return to higher law theories, they have elements in common which make it appropriate to consider their contributions to this phase of legal thought.

2. German Doctrine of a Rechtsstaat. The inspiration for some of the most suggestive higher law theories of modern times may be found in the thorough and stimulating investigations of Otto Gierke. Not only have his works furnished a clue for an attack on the absolute theories of sovereignty in Europe but also they have given an impetus to a new school of political theorists, the Pluralists, who deny the unity, inclusive, and thoroughgoing supremacy of political sovereigns.

Gierke, as previously noted, analyzed distinctly the mediaeval doctrine as to the relations of law and the state. The state, according to the mediaevalists, was not based on law but on moral necessity; its aim was the promotion of human welfare and the realization of law was one of the appropriate means to this end.[27] The state and the law were of equal rank and one did not depend upon the other. A distinction was made between the natural laws, which were above the state, and the positive laws, which could in no way bind the sovereign.[28] And there was everywhere a tendency to set limits to the growing powers of sovereignty. These limits might be ascribed to the overruling natural law, to vague theoretical limits arising from the necessity of the consent of the community, or to the insistent claims for a recognition of rights by smaller groups within the confines of the state. With this background Gierke was led to regard it as "impossible to make the state logically prior to law [Recht] or to make law logically prior to the state, since each exists in, for and by the other."[29] Though today the state is a lawmaking authority, it does not become, Gierke asserted, either the final source of law or a unique organ for its making. The real source of law is to be found in the common feelings or sentiments of the people. And while it is the chief function of the state to express in law the juridical conscience of the people other organs than the state participate in the lawmaking process.[30] A philosophic basis was established for a Rechtsstaat, or a state founded on justice, which has received the support of some of the foremost jurists of Germany.[31]

Though modern natural law theories are advocated for extremely divergent purposes and in strikingly varied forms, the influence of Gierke's views may readily be discovered in many of the recent attempts to revive the higher law philosophy.

3. Current Views Relating to Natural Law in Germany. Despite the espousal of natural law theories by prominent German jurists and philosophers during the eighteenth and the nineteenth centuries, the influence of Kant, Hegel, and Von Ihering combined with the growing sentiment of nationalism turned legal thought in a direction which fostered state omnipotence and led to the repudiation of every type of higher law philosophy. Hence, most contemporary German legal philosophers have rejected the system of natural law and have asserted that law is derived exclusively from the state. "It is without doubt a great advance of modern philosophy of law, as distinguished from the earlier law of nature," observed Ihering, "that it has recognized and forcibly emphasized the dependence of law upon the state."[32] To Ihering the state is society exercising coercion and law is the policy of force; or in the principles of Treitschke: "Der Staat ist Macht."[33]

Joseph Kohler from a different standpoint joined the critics of natural law concepts. Natural law, which had protected the nations against the caprice of princes and the papal power and had upheld the demands of what was reasonable in the face of what had become historical, since Hugo Grotius, he thought, has done scarcely more than to serve as the basis for an emerging international law. "At the beginning, natural law may have had significance as a protection against arbitrary rule, but this it soon lost, at least in Germany and France, and became instead the hobby of well-meaning absolutism which undertook to maintain natural law by setting its foot on the neck of the nation and trying to force it to be good, just, and happy."[34] On the other hand, the patriots of the French Revolution made use of it in unfurling the banner of rebellion. There is, he maintains, no eternal law — the law that is suitable for one period is not so for another.

Ehrlich also criticizes the Naturrecht philosophy as invariably resulting in an individualistic jurisprudence. There is, he insists, no individual right — every right is a social right.[35]

The prevailing German doctrine, which is based on the repudiation of natural law and of inalienable rights, results in the denial that constitutions are laws and that such written enactments[36] have any superior validity. At best it accords limits to the powers of the state based on self-denying ordinances or auto-limitations which rest for their enforcement with the consciences of those who control the destinies of the state.[37] Hence, the Naturrecht philosophy, though frequently defended by German jurists, was vigorously attacked by the Positivists and by the Sociological School of jurisprudence. It is significant, however, that in the wake of a thorough repudiation of the natural rights theories German legal thinkers are again leading the movement for a revival of natural law.[38]

At the same time that legal philosophers and jurists of continental Europe regard the eighteenth- and early nineteenth-century notions of fixed and immutable natural or higher laws as repudiated, there has arisen a juristic movement which may be termed "a revival of juridical idealism" which is bringing to the forefront again the doctrine of natural law. One of the best-known exponents of this juridical idealism, Rudolf Stammler, gave the clue to the new movement when he insisted that he was not an advocate of a fixed and immutable natural law but of "a natural law with a variable content."[39] Stammler believes that law comes before the state and that the state is a creature of law.[40]

In setting for himself the problem of finding the "just law" or "richtige Recht" Stammler repudiates the a priori principles of the old natural law and instead aims to determine a formal criterion by which law may be evaluated. The concept of just law is based on a fundamental characteristic of the social order, namely, a feeling for right or a longing for justice.[41] Stammler, as a follower of Kant, sought to formulate by pure reason "a formal method of general validity." Though he recognized that purely formal law may for the time being prevail over "fundamentally just law" in due course such formal law must be tested by and subordinated to the higher conception of "richtige Recht."[42] Hence, he turned to what he regards as a "fundamentally and eternally true idea of natural law, which implies a content in agreement with the nature of law rather than with the nature of man."[43]

It is interesting to note that Stammler's theory of just law has nothing to do with the validity of any particular law. "Just law" is to be used for the interpretation of legal rules only when the legislature grants such authority. To allow judges or other officers to refuse to enforce laws because they consider them as unjust, Stammler thinks, would substitute the arbitrary will of a few individuals for the regular and orderly authority of established legal rules.[44] Geny, who regards Stammler as the foremost legal philosopher of modern Germany, believes that the great defect of his speculations lies in the failure to relate "richtige Recht" to the positive law of a given country.[45] His efforts seemed to be exhausted in making distinctions and in laying down criteria. What appears to many to show the utter impracticability of his theorizing is to be found in the observation that "the principles of just law do not contain in their idea and form anything of the specific content of positive law." [46]

That there is a law in agreement with nature or reason and which should remain once and for all absolutely just, Stammler denies. But he advocates a law of nature which may serve as a formal criterion or standard to test the justice of a given law and insists that the standard or criterion is not a law; by it primarily legal concepts are judged and characterized as just or unjust. "Just law, like the law of nature, is a law or laws with specific legal content which is in accord with the standard. It is then objectively just, but not absolutely just; for the moment the circumstances change, the same legal content will no longer be in accord with the standard and hence will cease to be just."[47]

Efforts to direct attention again to the Naturrecht philosophy in Germany have received their chief support either from those who belong to schools imbued with religious or metaphysical speculations or from those who are seeking a basis for a new international law outside of conventional legal rules. Each of these tendencies will be considered in subsequent sections.

The modern revival of natural law philosophy is frequently advocated in France and it will be of interest to give a condensed account of the views of a few representative French authorities.


1. Metaphysik der Silten: Metaphysische Anfangsgrunde der Rechtslehre (2d ed., 1798). Kant's legal doctrines may be found in The Philosophy of Law, An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, trans. by W. Hastie (Edinburgh, 1887). Cf. also Duguit, "The Law and the State," Harvard Law Review, XXXI (November, 1917), 40 ff., and Michel, L'ldée de l'état, pp. 49 ff.

2. Hegel's Grundlinien der Philosophie des Rechts, oder Naturrecht und Staatswissenchaft im Grundrisse (1821); Hegel's Philosophy of Right, trans. by S. W. Dyde (London, 1896). Hegel's theories of the state, sovereignty, and law were well designed to support a monarchy of the Prussian type. Duguit, op. cit., pp. 57 ff.

3. Cours de politique constitutionelle, 4 vols. (Paris, 1819), I, 177, 306; Michel, op. cit., pp. 299 ff.

4. Cf. Duguit, op. cit., pp. 105 ff.

5. Duguit speaks of Constant's doctrine on this point as "the French classical doctrine." For the advocacy of a similar doctrine by a German writer, consult Gerber, Grundzuge des deutschen Staatsrechts (3d ed., 1880). Duguit, op. cit., pp. 119 ff.

For a defence of the rule of reason as a superior legal principle, consult Victor Cousin, Cours d'histoire de la philosophie morale au 18e siècle (1839).

6. Progress of Continental Law in the Nineteenth Century, Continental Legal History Series, p. 26.

7. See his Grundlage des Naturrechts, oder philosophischer Grundriss des Ideals des Rechts (Jena, 1803), and Abriss des Systems der Philosophie des Rechts oder des Naturrechts (Göttingen, 1828).

8. Cours de droit naturel ou de philosophie du droit (Brussels, 1836-39). M. Roder was also a disciple of Krause; see his Grundzuge des Naturrechts und der Rechtsphilosophie (2d ed., 1860).

Josef Kohler thinks that books like those of Ahrens, Krause, and Röder "are not even worth enumerating; they are products of utter banality and poverty of ideas." Philosophy of Law, p. 25. This harsh judgment, like similar judgments of Kohler, does not do justice to the influence of these men on legal thought.

9. Ahrens, op. cit., I, (6th ed., Leipzig, 1868), 1 ff., 96 ff.; II, 1 ff., 146.

10. For a consideration of natural rights sanctioned by the Code Napoleon, consult Duguit, Les transformations du droit privé (Paris, 1912).

11. See Répertoire de legislation de doctrine et de jurisprudence, XIX (new ed., 1852), 11 ff., and Supplement, VI (Paris, 1890), 425 ff.

12. F. Laurent, Principes de droit civil (5th ed., 1893), I, pp. 50, 51. Pothier used natural law to supplement and modify Roman law rules as to contracts in laying the basis for a principle of modern Continental European law, that deliberate promises, being morally binding, were legally binding. Traité des obligations, Pt. I, chap. 1. Cited in Pound, Law and Morals, pp. 91, 92.

13. See De Bonald, Discours préliminaire a la legislation primitive; also Theories du pouvoir politique et rellgieux dans la société civile (1796), and Essai analytique sur des lois naturelles de l'ordre social (1817). Harold J. Laski, Authority in the Modern State (New Haven, 1919), chap. 2 and chap. 3 on Lamennais. Joseph De Maistre, Considerations sur la France (1796); Essai sur le principe générateur des constitutions politiques et des autres institutions humaines (1810). For summary of the theocratic theories in the reaction against the political philosophy of the French Revolution, consult Michel, op. cit., pp. 99 ff., and Harold J. Laski, "De Maistre and Bismarck," in Studies in the Problem of Sovereignty (New Haven, 1917).

14. Laski, Authority in the Modern State, p. 130.

15. Laski, Authority in the Modern State, chap. 4; Michel, op. cit., pp. 200-209.

16. Michel, op. cit., pp. 203 ff.

17. Cf. Alfred Fouillee, Idée moderns du droit, trans. in Modern French Legal Philosophy, Modern Legal Philosophy Series, VII (Boston, 1916), 152.

18. Laski, Authority in the Modern State, p. 167.

19. A. Boistel, Cours de philosophie du droit I (Paris, 1899), 1. The original work based on the principles formulated by Rosmini was issued in 1870.

20. Ibid., pp 72 ff.

21. Geny criticizes Boistel's work as based on artificial reasoning to which the author attaches objective validity. It has the result, he thinks, "to give an assured place only to a small number of general ideas, derived from a very exalted sphere, but scarcely capable from these alone to lead to anything else than an inspiration of justice." Francois Geny, Science el technique en droit privé positif (Paris, 1915), II, 292-294.

22. Cf. M. Hauriou, "Philosophie du droit et science sociale," Revue du droit public, XII (1899), 462.

23. Charmont, La Renascence du droit naturel (Paris and Montpellier, 1910).

24. Cf. his work on Le droit individuel et l'état.

25. Michel, op. cit., p. 628. "The idea of the sublime dignity of the human person is what the eighteenth century has bequeathed to us." Ibid., pp. 60, 644.

26. Michel, op. cit., p. 630.

27. Gierke, Political Theories of the Middle Ages, p. 74.

28. Ibid., p. 78.

29. Gierke, op. cit., Maitland's Introduction, p. xliii.

30. There is between law and the State [says Gierke] a reciprocal penetration of a particularly close and intimate nature. The law is innate in the State. Law is no more begotten by the State than the State is begotten by law. But, although each has its own reasons for being, each is developed by the other.... Today the State acts as an organ in the formation of law. But for that reason the State does not become either the ultimate source of law or the sole organ in its formation. The ultimate source of law resides rather in the common consciousness of the social being. The common belief that something is right needs, for its external realization, materialization by a social expression, as for instance, in a rule of law ... not infrequently this expression takes place through and by means of the State, which has for its principal role the shaping of the juridical consciousness of the people in the form of law. But social organisms other than the State can formulate law.... Juridical life and the life of the State are two independent sides of social life. While power is a rational condition of the State because a State without omnipotence is not a State, it is immaterial, so far as the notion of law is concerned, that there exists for it means of external power; for law without power and without action always remains law. Gierke, "Die Grundbegriffe des Staatsrechts und die neuester Staatstheorien," Zeitschrift für die gesammte Staafswissenschaft, p. 306; quoted by Duguit, op. cit., pp. 159, 160. Cf. comments by Gierke in Zeitschrift fur die gesammte Staatswissenschaft (Tubingen, 1874), p. 179.

31. See also Gierke, Johannes Althusius und die Entwickelung der naturrechtlichen Staatstheorien (3d ed., Breslau, 1913), chap. 6.

32. Der Zweck im Recht (1877), trans. in part in Law as a Means to an End. Modern Legal Philosophy Series, V (Boston, 1913), 178. For a criticism of the eighteenth-century natural rights theories, see L. von Savigny, "Das Naturrechtsproblem und die Methode seiner Lösung," Jahrbuch fur Gesetzgebung, Vervaltung und Volkswirtschaft im Deutschen Reich, G. Schmoller, XXX, 407-417.

33. Treitschke, Politik (Berlin und Leipzig, 1890-1900). Cf. Duguit, op. cit., pp. 126 ff.

34. Kohler, Lehrbuch der Rechtsphilosophie, trans. as Philosophy of Law in Modern Legal Philosophy Series, XII (Boston, 1914), 5, 6, 10.

35. Eugene Ehrlich, Grundlegung der Soziologie des Rechts (Leipzig, 1913), P. 34; "Es gibt kein Individualrecht, jedes Recht ist ein Sozialrecht. Das Leben kennt den Menschen als einem aus dem zusammenhange gerissenen einzelnen und einzigen nicht, und auch dem Recht ist ein solches Wesen fremd."

36. This is the doctrine which Hauriou styles the "brigandage juridique" in "Le droit naturel et l'allemagne," Le Correspondant, CCLXXH (September 25, 1918), 913.

37. Ihering, Der Zweck im Recht (1880), pp. 318, 344, and Law as a Means to an End, pp. 267, 314; Jellinek, Allgemeine Staatslehre (1900), pp. 303, 330 ff.

38. Erich Jung, Das Problem des naturlichen Rechts (Leipzig, 1912); Alfred Manigk, Wo stehen wir heute sum Naturrecht? (Berlin-Grunewald, 1926).

39. Cf. Stammler, Wirtschaft und Recht (2d ed.), pp. 165, 176, 181, 456; Theorie der Rechtswissenschaft (Halle, 1911), pp. 124 ff.; Die Lehre von dem Richtigen Rechte, 2 vols. (Berlin, 1902-07), I, pp. 93 ff., 196 ff. The last of these volumes has been translated in the Modern Legal Philosophy Series under the title, The Theory of Justice (New York, 1926).

40. "Fundamental Tendencies in Modern Jurisprudence," Michigan Law Review, XXI (April, 1923), 623, 765.

41. The Theory of Justice, pp. 22, 116.

42. See F. Geny, "Critical System of Stammler," in The Theory of Justice, pp. 508 ff.

43. Ibid., p. 516.

44. The Theory of Justice, pp. 81, 511 ff.

45. Ibid., p. 548.

46. Ibid., p. 211; and Alfred Manigk, Die Idee des Naturrechts (Berlin und Leipzig, 1926).

47. Isaac Husik, "The Legal Philosophy of Rudolf Stammler," Columbia Law Review, XXIV (April, 1924), 373, 387, 388, and Stammler, Mich. Law Rev., XXI, 638. Says Stammler, "absolute validity is possessed by the system of pure forms, by which alone the intellectual life in general can be methodically ordered." Illustrations of the pure form of legal speculation are "the notion of law" and "the idea of law." For an analysis of the theories of Kohler and Stammler, consult William Ernest Hocking, Present Status of the Philosophy of Law and of Rights (New Haven, 1926), p. 30.


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