THE REVIVAL OF DROIT NATUREL, NATURRECHT, AND SUPERIOR
LAW DOCTRINES IN THE JURISTIC PHILOSOPHY OF EUROPEAN WRITERS
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. 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.
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
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. 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." 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.
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
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, and Heinrich Ahrens, who
accepted the philosophy of law of Krause and gave it wide circulation
throughout Europe. His leading work, 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. The principles of the French Revolution
developed in these works gradually introduced natural law ideas into the
standard treatises and commentaries on French law. Dalloz gives an extensive account of the
natural rights which are regarded as belonging to man as an
individual. 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
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. 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. 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. 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. In fact, Victor
Cousin, Royer-Collard, and Guizot appealed to reason as a basis to support
aristocracy and the rule of the wisest. 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
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. 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." From this
individualistic principle he sought to develop an entire legal
system. 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.
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." Human rights, he thought, exist before the
law and they are above the laws.
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. 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." 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
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. 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. 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." 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. 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.
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
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." 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."
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." 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.
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 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. 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
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." Stammler believes
that law comes before the state and that the state is a creature of
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. 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." 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."
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. 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. 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." 
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
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.
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
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
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).
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
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.
29. Gierke, op. cit., Maitland's Introduction,
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),
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.
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.