REVIVAL OF NATURAL LAW IN METAPHYSICAL AND THEOLOGICAL
NATURAL LAW THEORIES AND INTERNATIONAL LAW
THE modern revival of natural
law theories is the result of a variety of tendencies in legal, political, and
moral thinking. Jurists of the most diverse points of view, inclinations, and
interests join in the advocacy of higher law theories. One of the foremost
movements in modern thought which is bringing natural law out of its seeming
state of disrepute is connected with renewed efforts to seek the sources and
sanctions for legal rules in religious and metaphysical speculations. Taking as
a standard the mediaeval concepts of natural law, when jurisprudence was a
branch of theology, and following the metaphysical analyses of Thomas Aquinas
in. relation to law, modern juristic writers, mainly adherents of the Catholic
faith, aim to restore natural law again to its position of primacy in the
political and legal world. In fact, certain phases of the Thomist system,
namely, that natural law was "nothing else than the rational creature's
participation in the eternal law" and that it comprised rules of conduct
essentially prescribed by the Creator, have never ceased to be one of the main
tenets of thought among jurists interested in theological speculations. During
the nineteenth century, when the natural rights philosophy was repudiated by
politicians and by certain jurists the ancient theories, as molded under
mediaeval influences, continued to receive careful analysis, exposition, and
defence by Catholic writers.
We can make no greater mistake [says Dean Pound], than to suppose that the
speculations of the metaphysical jurists were without practical effect upon the
law. We should be put on our guard, if by nothing else, by the wealth of
literature from this standpoint in the first three quarters of the century.
When a popular exposition thereof, such as Ahrens' Cours de droit
naturel, could go through twenty-four editions in seven languages between
1837 and 1892, men must have been finding satisfaction in the metaphysical
theory of law in more lands than one.
1. Natural Law Doctrines of Del Vecchio. There are evidences of a
return to natural law theories in most of the European nations but in none is
the tendency more marked than in Italy, where the Catholic or Traditionalist
School has had a prominent position in legal thought. Among the many Italian advocates of the
theories of natural law Professor Georgio del Vecchio of the University of Rome
is a leader among an active group who aim to turn juristic philosophy in the
direction of higher law ideas. Del Vecchio insists that there must be in
jurisprudence an element not derivable from experience and he conceives a
natural law based upon the common elements in man's nature. The war against natural law concepts, unless
it aims merely to correct errors and omissions, he regards as unjust and
irrational. To him the conception of absolute justice is one of the fundamental
needs of the human mind. Says del Vecchio:
Natural law exists, therefore, as a system of the highest
truths, not sensible but rational, and is, then, independent of the existence
of common institutions in all nations ... the idea of natural law, which has
withstood the attacks of skeptics and empiricists of past times will resist
those of modern positivists, and will guide humanity in the future.
Del Vecchio conceives as a universal element in the law what he calls its
logical form (Forma dat esse rei). This logical form is a metaphysical
and an a priori essence of the law. On the basis of these norms certain
principles of law are regarded as deducible a priori from human
nature. Natural law is not, then,
merely rationalized law; it constitutes "a special order of juridical
rules founded upon a definite criterion." In predicating these universal
norms of legal reasoning Del Vecchio suggests a philosophical basis similar to
the fundamental principles and the abstract rule of reason permeating much of
American constitutional law.
Del Vecchio explains in detail the prevalence, in the Italian system of law
and in other legal systems based essentially on Roman ideas, of principles of
law or of basic notions which condition all legal thinking.
Besides the multitude of special laws and of the decisions
relating to particular cases and to definitely determined relations, there
exists in our legislation [he says] notably in the Constitution and in part
also in the preliminary provisions of the Civil Code or in other laws, positive
affirmations of a general character which reflect in a measure more or less
large, the rational elaborations concerning the law accomplished by the
preceding schools of philosophy.
Permeating the Code, legislative acts, and the interpretations of the judges
are the applications of such natural law concepts as the principle of equality
before the law, the respect for persons or individuality, the right of privacy,
the right to use one's faculties, and the right of property. The peculiar results derived from the
applications of these concepts, it is claimed, can by no means be understood by
reference alone to the formal provisions of the laws. But rather,
there are, among all peoples, some fundamental convictions
regarding modes and aims of conduct, which represent the common exigencies of
human nature, displayed according to the degree of their development, and in
relation to certain elements of outward fact. Such convictions determine
generally all the forms under which life shows itself, and accordingly the
juridical system among others, although they are not found written in the
provisions of any code.
The historical basis of right arises, Del Vecchio believes, from the
exigencies and aspirations of individual consciences. But it is not an entirely
variable concept, rather a form of right, which, "analogous to that of
morality, does not depend on facts, but rather tends to control them; whence
neither can it be limited by the institutions actually in vigor, of whatever
kind they may be; rather it sets its affirmations naturally beyond these, and
sometimes against them."
When the rules of positive law come into conflict with the principles of
natural law, Del Vecchio asserts, it is the duty of the judge to apply the
positive rules. In such a case the principles of natural law, in his judgment,
remain alive and active and in the end will be recognized by the positive
law. Formal rules and maxims
contrary to reason may be imposed temporarily but in the end equity, reason,
and good faith will prevail despite formal prescriptions to the contrary.
The following extracts will indicate Del Vecchio's point of view in his
effort to revive interest in natural law principles of a metaphysical type,
somewhat similar to the Kantian hypotheses.
The idea of the natural right [law] is truly one of those which
accompanies humanity in the course of its history; and though some schools, as
it has happened very often, especially in our day, try to exclude it or to
ignore it, the idea is affirmed powerfully once more in life. Consequently, it
is rationally incorrect to try to discard it, and it is still more so when it
is a question of interpreting a legislative system, under the dominance of this
idea. Of this we have the proof, not so much in the preparatory works of which
we would not want to exaggerate the importance from the standpoint of
interpretation, as from the fact that our legislation concerning private law,
is derived for the greater part from the Roman law, entirely developed about
the idea of naturalis ratio, and that concerning public law, from the
constitutional systems of England and of France which have for their
fundamental bases a Bill of Rights and a Declaration of Rights, real and
typical expressions of jus naturae.
Whatever judgment the interpreter wishes to make from his point of view on
this great doctrinal tradition, and on its actual significance, which is by
many signs shown to be inexhaustible, one cannot, however, deny that this
doctrinal tradition had a real existence and a vigorous efficacy at a time
which corresponds to the formation of our present legal system. Hence the
necessity of not neglecting its study and running the risk of refusing to
understand the real and exact significance of the system.
This study, which integrates that of the particular norms to which we have
already alluded, constitutes also a check as well as an aid for individual
thought in the reconstruction of the law now in force. It facilitates above all
the seeking for origins concerning this part of the general principles of law
which the legislator had the opportunity of recognizing and of formulating,
without, however, giving them a complete and definite expression; also, this
study makes easier the seeking for the principles which are not formulated, but
which nevertheless actually exist in the system, where they are buried, so to
speak, under the mass of particular norms, which are derived more or less from
the application of these rules. The tie which exists between the general
theories of law that prevail in the thought of a given period, and in the legal
provisions which, in the same period, are organized and drawn up, can be
discovered more or less direct, and more or less easy. Such a tie must exist,
if it be true that the world of civil affairs has been made by men, and
consequently these principles must be found in our human mind; in other words,
if the human mind gives birth to the law as a phenomenon and as an idea. It is
easy to understand, therefore, that the work of the interpreter, when he tries
to comprehend and to integrate a system determined by history, cannot be wholly
evolved from within, that is, arbitrarily and individually; it cannot consist
in the affirmation of a natural right "which each one shapes for himself
according to his individual whim," against which the logic of the jurist
would have good reason to protest. The appropriate support and assurance, in
our quest for principles, are given us by the entire general theories which
envelop the law and which are not the artificial work of an individual thinker,
but which correspond to a strong and true scientific tradition intimately
linked in the genesis of the laws actually applied. And this consideration
which is necessary to give to the doctrinal traditions does not prevent the
elaboration of the ulterior elements which compose the whole; on the contrary,
it facilitates their interpretation, in the sense that it indicates, by means
of principles already assured, the direction in accordance with which their
progress and ulterior development should move.
The school of natural law intended and intends essentially to
uphold the non-arbitrary character of the law, that is to say, the existence of
a necessary relationship between the intrinsic substance of things and between
the rules of law which are connected with them.
Even the principle upon which we are all particularly agreed, the principle
of the innate and absolute right of the individual, agrees with this
fundamental tendency; by this principle, in fact, one affirms that the true
nature of man implies an element of transcendentalism, a faculty which cannot
be suppressed, and which is consequently inalienable, to dominate the order of
phenomena and to find in itself its own determination, in a word, to affirm the
autonomy of the human being. The law cannot fail to recognize such a fact, nor
refuse to take from it all the consequences and applications which are in its
According to the same criterion the way is open for the research of law
corresponding to each kind of juridical reality, in so far as it contains
relations between individuals. This inquiry, which is accomplished by means of
the reason ("ex ratiocinatione animi tranquili"), as Thomasius said,
has its normal period of comparison in the positive juridical rules which
represent already, in fact, an attempt at a solution of the same problem.
Numerous cases, and especially when it is a question of recognizing purely
logical necessities of the immediate exigencies of our being, and of conditions
of natural law, or of the naturalis ratio, manifest themselves, in a
given moment, as elements of the positive law and form precisely its
substratum, a substratum which is retained, and which is transmitted, through
the changes of positive law. That, for example, no one can transfer to any one
else more right than he himself enjoys; that it is legal to oppose strength and
that, consequently, every one has the privilege to defend himself against any
aggressions; that, in all matters, the advantage must belong to the one who has
been inconvenienced; that no one can enrich himself unjustly at the expense of
others. All these criteria, and many others that are similar to them, come from
the natural juridical reason and have been in a sense already stated by the
Roman jurists. They indicate the formative principles of the laws actually in
force today, whether these laws express these principles precisely, or whether
they are regarded as implied in the form of maxims, the disappearance of which
would cause many particular legal provisions to lose all of their meaning.
The necessity of having recourse to such criteria and, in general, to the
natural juridical reason, is kept very active and very urgent by the incomplete
nature which inevitably belongs to the positive law; it is so urgent, indeed,
that one could not avoid such a recourse even if an expressed reference to
general principles similar to the one offered by Art. 3 of the preliminary
provisions of the Italian Civil Code, were lacking, as it happens in other
systems (for instance, in the Code Napoleon and in the German Civil Code). This
fundamental exigency which inspires the theories of natural law and which is
called, in a wider sense, "equity," a consideration of all the
elements of reality necessary to determine the equilibrium in the transactions
between two persons, cannot be repudiated by positive legislation. This
legislation itself, after having attempted to supply what is necessary in a
measure for such an exigency, must admit finally that it is directly applied
through the conscience alone of the judge, in all cases not determined by
precise rules, nor likely to be determined by them, at least by analogy. It is
noteworthy that, in certain cases, the legislator himself abstains deliberately
from fixing a rule and acknowledges that he has recourse to this criterion of
natural reason, which is presupposed as the intrinsic basis of law.
The ancient adherents to doctrines of jus naturale, Del Vecchio
thinks, were wrong in so far as they attempted to identify natural law with the
laws common to different peoples and hence the reaction of the empiricists
resulted in an over-emphasis on the historic variability of law. This conflict,
it is thought, is obviated by conceiving a series of positive laws as
unified by the tendency toward the development of natural law.
This tendency, grasped by the mind a priori as an absolute and universal
necessity, superior and anterior to any application in experience, develops
through a long and laborious historical evolution. This should not be taken to
mean that natural law begins to be true or becomes law only at the moment when
it is recognized and actualized (for this would throw us into the old error);
the additional positive recognition does not result in value or truth, but is,
at the most, a consequence or result of its value or truth. Observance or
non-observance per se, as facts of the empirical order, do not affect
the intrinsic significance of the principle, which is essentially
transcendental, and which is self-sufficient in its sphere regardless of its
unrecognition or violation in fact.
It is difficult for one trained in Anglo-American legal ideas and traditions
to appreciate or understand the point of view of Del Vecchio. But it is a point
of view through which alone much of the legal thinking of Continental European
nations becomes intelligible. Though the traditionalist or metaphysical
approaches to an understanding of the law have had little vogue in England and
in America, these legal systems have been far from free from metaphysical or
transcendental legal notions.
Among the many modern exponents of religious and metaphysical theories of
natural law only a few can be briefly mentioned. A summary of some of the views
of a few representatives of this school may suggest the characteristics of the
higher law philosophy in its religious and metaphysical garbs.
2. Theological Interpretation of Natural Law by Victor Cathrein. One
of the special advocates of the religious and metaphysical approach to natural
law is Cathrein. Cathrein
classifies the opponents of the natural law philosophy in three groups: first,
The Evolutionists, comprised of pantheistic monists such as Paulsen,
Wundt, Kohler, and Berolzheimer, or of materialists such as Darwin and Spencer,
or the economic determinists such as Marx and Engels — all of whom deny
the existence of concepts or principles of general and immutable value; second,
The Empiricists, such as Binding and Merkel, who recognize concepts and
general principles but pretend to discover them through the sole avenue of pure
experience and comparison; and, third, Formal a priorism of the kind of
Stammler, who, following the inspiration of Kant, wishes to bring back the
immutable essence of law in a pure form, exclusive of all predetermined
Cathrein contends, in opposition to these tendencies, that every science and
notably juridical science implies the necessity of concepts and general
principles, in reality recognized by all, even by those who pretend to deny
their existence. Referring to the
point of view of Savigny and of the Historical School that the real source of
law is to be found in the spirit or conviction of the people Cathrein claims
that if one denies that there are general principles of law controlling the
actions of men, one is led in a sort of circle to a supreme source of law in a
"general consensus of right," the "convictions of the
people," or custom. And these
sources do not in fact carry one to the real origins of law, for natural law is
"the indispensable foundation of positive law, since without it, one
cannot conceive of any regular authority or of any legal protection, of which
the state is the necessary instrument."
Law is an essential part of the moral order to Cathrein and from the
concepts of the moral order juridical systems are evolved. Tracing the ultimate
sources of law to divine origins he embodies much of his analyses in obtuse
theological and supernatural notions which have tended to discredit the work
among jurists inclined to view their field scientifically and
The position of Cathrein as to natural law may be summarized as follows:
There is a law of nature which governs the life of man, whether it is
discovered and followed or whether man attempts to defy it; God is the primary
source of this natural law and its secondary source is in its revelation of its
principles to man; all human enactments to be valid are merely declaratory of
this law. This natural law
(Recht) is the indispensable foundation of positive law. It is universal
and immutable. Though its rules may be discovered by reason, they do not arise
from reason but from the superior will of the Creator.
Contrasting the modern German political-historical thinking with the
characteristics of West-European and American political thinking, Ernst
Troeltsch finds two lines of thought dominant in Western Europe — one
progressive, democratic, and revolutionary; the other conservative,
aristocratic, and authoritative — both based upon the Ancient and
Christian ideas of an eternal-divine natural law. These ideas involve doctrines
of the homogeneity of human beings, of the uniform destiny of humanity, and an
abstraction of equality among men. Though many Germans, Catholics and Lutherans
alike, follow the conservative, aristocratic, authoritative tradition, there is
a new school which supports a religious-aesthetic ideal placing the emphasis
upon the individual human intellect as a positive and creative force. In
opposition to the rule of reason in the creation of the state and doctrines of
equality and homogeneity among men, these modern German thinkers would found
social and political organizations on individualistic and pluralistic
hypotheses. In this romantic ideology natural law, whether progressive or
conservative, has little place.
3. Metaphysical Doctrines of Geny. Based only partially on religious
and doctrinal grounds a more effective exposition and defence of natural law
principles from the metaphysical standpoint are to be found in the writings of
Geny, who like Duguit ranks as one of the foremost jurists of France, has
been laboring many years to have his countrymen value more highly the superior
law concepts, which he conceives as the source and sanction of positive law.
The former rationalist type of natural law, Geny thinks, suffers from an
"aridness of analysis" and needs to be supplemented by "the
pliant and rich fecundity of intuition." In fact Geny, along with others of the
Metaphysical School, gives much emphasis to the rôle of intuition, or
what is termed "intuitive understanding," in the determination of the
ultimate purposes and the end of the law. Man, considered as he is, living
amidst nature and society, finds himself, according to Geny, surrounded by an
ensemble of "necessary relations which are derived from the nature of
things." These arise from the physical, psychological, moral, social, as
well as the metaphysical or transcendent factors which control and confine
human actions. From these factors arise natural laws, some of which are
transcendent to all experience. Man can acquire a knowledge of these
transcendent rules and can be guided by them, though he cannot successfully
resist them. To Geny these natural laws have a distinct relation to the
religious and moral life of man.
The fundamental problem of the jurist, no matter under what forms it maybe
disguised, Geny thinks, is "the eternal problem of natural law
[droit]. And while the doctrines of natural law have taken various
forms, some of which continue to hold sway today, one no longer pretends to
build through reason an ideal system of law, eternal and immutable, which is
equally applicable to all times and all countries."
Though Geny recognizes a theoretical supremacy of natural law and suggests
that in the case of an absolute conflict natural law must be superior to the
written law he realizes the impracticability of this conclusion,
and he says, "I believe for myself, that plain good sense, elementary
observation, and universal testimony, acknowledging the primary necessity of
order and recognizing that order can be established only by a rule emanating
from an effective authority, suffice amply to justify to the reason the
legitimate preeminence of the written positive law." The main obstacle, he thinks, which prevents
the maintenance of the principles of natural law when they come into conflict
with the positive written law is that these principles of natural law, however
firm their basis, consist only of general directions of conduct. They are too
abstract and too evanescent for the concrete circumstances of social life,
especially when they clash with the definite judgments of formal authorities.
It is his belief that this vagueness can in part be overcome by bills of rights
in written constitutions wherein are expressed the essential principles of
immutable natural law. This expedient, however, is regarded as unsatisfactory,
for either the written constitution becomes over-rigid and an obstacle to
legitimate progress or it loses
its rigor in an indefinitiveness that discredits the value of a written
In his judgment, however, a rigid constitution judiciously used and broadly
interpreted might be useful, if it could be given an effective sanction and if
its precepts could be placed beyond the reach of ordinary law. Hence some
method must be found to temper practically "the brutal power of the
written laws, in order to stop their action or impair their results every time
that they attempt to interfere with justice, to slight the objective factors of
the social life, or to pass beyond the injunctions or prohibitions of natural
Among the devices to temper arbitrariness in the enforcing of the law Geny
commends the "exception d'inconstitutionnalité," the declaring
of a law invalid by the judiciary, which he believes could be adopted, in a
measure at least, without contradicting any essential principle of French
public law. On the contrary it is his judgment that such authority wielded by
judges would serve to assure a guarantee of the indispensable application of
the principles of public law.
Admitting the difficulties and the weaknesses of the American plan of judicial
review of legislative enactments to test their validity, which has led critics
to speak of it as a "government by judges," Geny concludes that the
organization of the judiciary in France and the traditions of the country would
prevent such excesses and that it would be in "perfect harmony with the
essential bases of the French constitution" to adopt a similar plan. To
those who claim that the existing courts of France would be unequal to the
responsibilities of so great a power and that a special court should be created
for this purpose, Geny replies that such a proposal is wholly unnecessary and
that from every standpoint the matter could be left to the jurisdiction of the
regularly established tribunals.
Where no effective means are provided to check arbitrary authority on the
part of the government Geny regards the right of resistance as legitimate, but
the right must be surrounded by some obvious limitations in the direction of
maintaining the individual rights of man. Admitting that when a conflict arises
between positive law and natural law, positive law must prevail, he aims to
modify the rigor of the strict enforcement of the written law and to suggest
remedies whereby the flagrant injustice of its provisions may be prevented. In
his judgment every possible device should be provided to check abusive
applications of the law, which may lead, if not prevented, to forcible
To keep governmental agencies within reasonable bounds Geny says he agrees
with Duguit and Hauriou that it is necessary to establish superior principles
of law and right as a restraint on the majorities who make the law. As he sees it, concepts of justice must be
sought which represent "a higher reality existing outside of
It is necessary, Geny believes, to find the source of the law in natural
law, which has developed from ancient times and has persisted in spite of all
opposition and criticisms. He
thinks it is not, as is often suggested, a means of supplying omissions in
positive legal rules but the very foundation upon which positive rules rise and
Speaking of the necessity of natural law, Geny says:
The problem of the existence of natural law remains today as
always, the center of gravity of the positive juridical system. And, whether
one acknowledges it or not, one perceives it underlying all the efforts which
are pursued, in order to realize in an effective manner a better and more
complete justice among men. On what bases would the state be established, which
preserves in all its powers the positive rules of the social order, and from
whence are the powers derived which form it, whether from a simple fact or from
a group of principles. Those who make the law, the legislators, are they free
to create this law to their liking, following their ideas, their interests,
their passions or rather ought they to conform to a superior norm dominating
all subjective impressions? Those who engage in the work of positive law, as
administrators, those who interpret or apply it, in the capacity of judges, are
they bound by this form, by the text of the law; ought they not to look beyond
this, to penetrate to the sources, intimate and substantial, from whence they
are derived, and those who obey the law, who ought to observe its precepts, to
avoid its penalties, are these obligated to submit without recourse to its
injunctions? Can they not understand, discuss, criticise the established rules,
I mean not only as electors but as subjects; and do they not have the right to
interpret, to modify, to transform the existing law, indeed, in extreme cases
to rebel against it; this implies that they appeal to aspirations defying by
their nature the variations of particular legal formulas? And, in the
international domain also, where would the necessary rules be found to
establish the relations between states, if there is no place for the reality of
precepts, outside of the above positive rules, which are here always small and
On the whole, Geny has presented a thorough and suggestive analysis of
natural law, with a leaning toward the religious and metaphysical points of
view. He differs from Cathrein,
however, in that he presents and criticizes the views of other natural law
philosophers and attempts throughout to make practical applications of his
The metaphysical types of natural law of Del Vecchio and of Geny, though
differing in certain respects from the realistic approach to higher law by
Duguit, have some characteristics in common with the rule of law
(règle de droit). The higher laws to which all human civil
enactments must conform are traced to different sources, the methods of their
discovery vary, but substantially the same results follow. Legal norms which
may be discovered by the reason or by the intuition of men stand above and
guide the entire process of law-making and law enforcement. It is the duty of
legislators, judges, and administrators to seek these norms and conform their
interpretations to their superior directive force.
4. Natural Law Theories and International Law. A significant phase of
the revival of natural law in Europe is apparent in the efforts to find an
enduring basis for international law. Realizing the insecurity of international
rules and agreements based solely on treaties, conventions, or a general
consensus among the rulers of existing states there is a tendency to recur to
general and universal principles of justice as discovered and interpreted
through reason according to the methods of Gentilis, Grotius, and Pufendorf.
Scholars and jurists are again raising the question whether in the
international field, at least, there does not exist a natural or objective law,
independent of the will of any state or group of states, and whether the action
of states in this field is not limited to ascertaining and giving sanction to
this natural law. This phase of the revival of natural law theories has so many
ramifications that it is quite impossible to deal with it adequately in this
treatise. Some representative opinions maybe cited to indicate one of the
noteworthy trends in the efforts to establish international law on a more
The trend of thought today regarding the relation of natural law theories to
the growth of international law is indicated in a symposium of views by
well-known authorities on public law. The following questionnaire was submitted
to a representative group of teachers and jurists:
Is the theory of natural law in relation to the law of nations,
jus naturae et gentium, as advanced by Grotius, and developed in the
course of the seventeenth and eighteenth centuries, in force today? — That
is to say, ought international and national courts as well as courts of
arbitration to follow the principles of this theory, to interpret and to
complete positive international law, in order to establish an accord of views
In case of an affirmative reply to the question proposed above, is it the
law of morality which forms the basis of the practical application of said
theory or is it the objective solidarity of the interests of each of the states
carefully considered? Or what other formula would be preferred?
The answers to the queries show a wide diversity of opinions. Most of the
replies, referring chiefly to the first query, may be classified under a few
groups. One group would discard
natural law theories entirely because they "tend to confuse thought and to
encourage loose and vague conceptions." Principles of natural law, according to this
view, are valid only when accepted by the nations as a part of the customary
international law. Another group
regard natural law useful to assist justices and arbitrators, when interpreting
existing rules of law and when there are deficiencies and uncertainties in the
rules of international law applicable to controversies. Some in this group
would prefer the use of the phrase "principles of equity" or
"principles of morals and justice" to the term "natural
Others favor the use of natural law not only to interpret but also to
supplement positive international law. Among this group Gustav Radbruch, German
Minister of Justice, thinks international justices should have authority
similar to the Swiss judges to fill gaps when written rules are inapplicable,
and when necessary to use natural law as a guide. In fact, this authority is
regarded as more necessary in international affairs because of the grave
dangers arising from legal uncertainties and from unsatisfactory decisions.
"The fact is of the greatest importance that even today natural law is not
dead, is not a repudiated idea," he asserts,
but a reality which is active in a powerful way. Ernst Troeltsch
has shown in a way that cannot be forgotten how the ideas of natural law and of
humanity are powerful influences in the Western-European and American, as well
as in the Catholic world of thought, and that a new approach for the German
historical-organical-positive school to the natural law theory is desirable and
If in international legal agreements, reference is made to the "highest
fundamental principles of international politics," or to the
"international moral law," or to the "fundamental principles of
justice and humanity which cannot be renounced" as to something that is
evident, what is really meant is the legal principles comprised in natural law.
Not as a necessity of reason but as a forceful fact of history, a form of
appearance of "approved teachings and traditions," these natural
legal methods of thinking have to serve as a guiding star for the further
development of international law just as they were decisive for its formation.
But one is not allowed to regard these ideas of natural law as an arsenal from
which the legal thoughts of international law can be taken as a finished
product, but rather as an atmosphere in which such legal thoughts are formed.
To make it clearer one may call this atmosphere with another word,
Eugen Schiffer, German Minister of Justice, also insists that there is a
place for natural law in the development of international law:
I have, to be sure, the heretical point of view, that is, that
in the classification of the different elements of the administration of
justice, the personality of the judge is foremost, the formulation of a method,
comes second, and the positive law, last. An able judge almost always manages
to get along with a defective method and an insufficient positive law; and,
even if he has available a good method, he will mostly obviate the lack or the
faults of the law at hand. On the other hand, the best formal law is of no use,
if it is paralyzed in its realization by an unfit method, or if it is put into
the hands of an unqualified judge.... Therefore, I have no doubt about it that
a high international court will not be stranded by the lack of actual law which
it has to administer, it will rather be its main task and its greatest worth to
guide the wavering materials of international agreements and of legal
international practices by a usus fori, and to bring them from the
sphere of occasional actions of a political character to the level of firm and
constant legal norms.
Naturally I would not have it understood that the question of actual law is
not of farreaching importance for the highest courts. Furthermore I do not
overlook the difficulties which are the result of the composition of these
courts, with the political, cultural, and social points of view of their
members who come from the most different fields of law, for the production of a
common positive legal basis. Therefore, the question of the necessity of such a
basis is absolutely justified, and, through the nature of international law,
the positive parts of which have been badly diminished and shaken by the last
world events, the problem of subsidiary law becomes very urgent. To my mind
only the fundamental principles of natural law can be taken into consideration
for such a law. I, at least, do not know any other law that could fill the gaps
of positive international law. But these fundamental principles of natural law
I would neither measure with the rule of international solidarity of interest
nor with the scale of the recognized subjective interests of the
Professor Louis Le Fur of the University of Paris answered these questions
in the affirmative and his views may well be quoted as indicative of a point of
view gaming adherents in Continental Europe.
"The theory of jus naturae et gentium of Grotius," Le Fur
is none other than the application to international relations of
the traditional theory which is very old, since it goes back far beyond
Christianity, and which distinguishes between the law laid down by men, the
positive law, and a law anterior and superior to the will of man. In the
century in which Grotius wrote, there was at times hesitation to apply to the
sovereign state the principles of law, whether for reasons of pure abstract
logic drawn from the nature of sovereignty, or for political considerations
similar to those which inspired Machiavelli; as soon as the state was involved,
which is always the case in international law, it appears that the question of
law was no longer considered as it was when individuals were concerned. Now,
the state is only a group of men governed by men; it can through its governors
deny morality and law and be motivated only by its interests, that is to say,
practically speaking, by its strength; but if the state recognizes juridical
and moral rules, the bases of these rules cannot be different from the bases of
those which apply to individuals. This is the truth of which Grotius caught a
glimpse, but very often with less clearness than his predecessors of the
Spanish school, such as Vittoria or Suarez; when applied to international law,
it appears as the ultimate consequence of this truth established by experience
that man is what has been called a "juridical being," a being whose
characteristic it is to be ruled by law.
Le Fur thinks that man, being gifted with reason and a moral sense or
conscience, and having social tendencies, possesses certain juridical
characteristics which grow out of his life as a social being and from his own
nature. When these rules acquire a sanction to compel obedience to them they
become laws. Those are in error, he says, who confuse the state and the law and
who consider the former a necessary condition of the latter. The state, he
claims, cannot make law arbitrarily. The nature of human beings must be taken
into account and their characteristics as beings gifted with reason and with a
moral sense. This, in his
is the profound truth which has been expressed, under diverse
names, by the wisdom of all the ages; if one has been able to speak of a
philosophia perennis, there is in regard to essential principles a
jus perenne which controls legal phenomena with more clearness. These
diverse names signify none else than natural, or rational, or objective law,
all these terms expressing the same truth, which is that law, the rule of life
in society, the only life possible for man, is not an arbitrary creation of
man. No being formulates for himself the laws which govern his life. Whatever
the form of government of a people, be it monarchical or democratic, those who
govern can do no more than recognize the law, deduce it from facts interpreted
by the reason, and harmonize it with the circumstances of time and environment.
For, although immutable in its fundamental nature — which is no other than
a moral principle, the idea of justice, itself the soul of law — the law
is very variable, on the contrary, in its application since, according to the
degree of civilization, the circumstances of life in society are apt to vary
quite considerably, from a three-fold point of view, that is an economic, an
intellectual, and a moral point of view, and these three are far from always
Conceiving natural law in the role of an ideal law, which is regarded as the
traditional use of the term, Le Fur finds that there is no question about its
place in a legal system. "To deny that there can be no other law than the
positive law under pretext, for example, that there can be no law without a
sanction, and that the positive law is the only law which has a sanction,
— is," he maintains, "to assert that the positive law is
necessarily what it ought to be, and is to withdraw in this respect all law
from criticism." He
From what precedes it follows that all juridical relations must
be conceived in two ways, or, if preferred, that there exist two kinds of law:
a rational or natural law, with a moral basis, which is in itself an abstract
truth as are all natural laws, existing objectively, as the latter, but
unsuspected by men as long as it was not deduced by the effort of the human
mind — and a positive law by which those who govern attempt to make it
effective, both having as an end the common good of the group to be governed,
be it a patriarchal family, a tribe, a city, or a state.
In his opinion, just as there are limits which a state must recognize in its
relations with individuals, so there are limits which bind states in their
international dealings. Hence
one is under the necessity either to deny international law, to
admit that the nations live in a pre-juridical state, without objective or
conventional rules which bind them, war, the expression of the right of the
strongest, being the only solution in conflicts — or to recognize the
existence of a natural or objective international law, which is not a pure form
covering any sort of content, but rather a just and useful law, corresponding
to the common good, and the common good is here that of the entire
international community. Exactly as in the case of internal law, it is not
arbitrary human wills, but really an historical, economical, and moral complex,
which conditions international law.
Just as in the case of private law, arbitral courts and international
tribunals must be guided, he thinks, not only by the interests of the states
involved but also by principles of justice and of natural equity which are the
background of all positive enactments. And, just as a national judge is
authorized to make a rule where the written law is defective, international
judges, when a pre-existing rule is lacking, must to a limited extent perform
the functions of an international legislature.
The natural law to be applied by these judges is not of an immutable kind
according to the eighteenth-century model nor of a variable type such as
Stammler describes but a form of the concept with both permanent and variable
"With regard to international law," says Sir Frederick Pollock,
"it is notorious that all authorities down to the end of the eighteenth
century, and almost all outside of England to this day, have treated it as a
body of doctrine derived from and justified by the Law of
Nature." "Here as
elsewhere," he suggests, "we must apply the principle of Aristotle,
and deem that to be reasonable, which appears so to competent persons. There
must be a competent and prevalent consent, and the best evidence of such
consent is constant and deliberative usage." There are those in England as elsewhere who
vision a Magna Carta for the field of international relations which shall set
the world on the path of legality rather than that of force to settle disputes
between nations and which shall limit the scope of the arbitrary powers of
Though little progress has been made in formulating the rules and principles
of natural law applicable to international relations it is a common belief that
in the drafting and the interpretation of an international code modernized
versions of the law of nature or law of reason will have a directive
5. Theories of Natural Law Prevalent in Europe. In the extensive use
which was made of the natural law philosophy in Continental European legal
thinking since the eighteenth century there are apparent a variety of types of
superior law theories. The inheritance of the Middle Ages furnished a form of
higher law concept in the nature of law fundamental which was designed to keep
rulers within recognized legal channels. Not only was there a foundation for a
resistance to arbitrary rule which gave sanction to the leaders of rebellion
and revolution but there was in this concept an ever-present criterion for
judges and administrators to hold in check over-zealous officials. Such a
higher law philosophy was supported by the continuance of the
eighteenth-century theories of natural rights which result from notions either
of the laws of God or of qualities inherent in the individual. The
nineteenth-century concept of civil liberty — a realm within which the
individual is secure from political interference — which emerges into a
doctrine of limited government under constitutional sanctions, owes much to
this form of the natural law philosophy.
The theologians and those influenced by the philosophy of the church,
conceived natural law after the model of Thomas Aquinas, as an emanation from
God. Its principles, which were eternal and universal, might be discovered
through reason and revelation. Religion, morality, and politics were therefore
only different phases of the same basic ideas. Civil enactments which failed to
conform with the religious and moral standards revealed by the Church were
Some jurists who no longer emphasized the religious background found for
natural law a priori and metaphysical bases. They conceived a logical
form or juridical norm to which all valid civil enactments must conform. Such a
norm was in its essence universal — an ideal becoming objective and
directive as it conditioned all the processes of law-making and law
enforcement. Not discoverable in any existing legal rules, it was inherent as a
formal principle in all such rules which were just and valid.
As speculation on legal matters was fostered by the universities and courses
in the philosophy of law were offered, natural law and the philosophy of law
were thought of as identical. Thus natural law became synonymous with a series
of ideal moral and legal principles which might be commented upon extensively.
The philosophical mold into which natural law thinking was cast in the early
nineteenth century gave it a wide currency in intellectual circles and brought
it increasingly into contempt among politicians and practical lawyers. Certain
treatises appearing at this time not only aimed to combine natural law and the
philosophy of law but also to explain both of these in the light of religious
and moral principles. Political practices and legal rules were put to the test
of standards derived from this curious compound of speculations. No wonder that
the very name of "natural law" became anathema among those who were
seeking a scientific basis for social phenomena.
At all times natural law has been considered as a body of principles or
doctrines, sufficiently well known and approved to be used by judges in molding
the law to suit concrete cases or in filling gaps in the written rules as
applicable to controversies. And at the same time it has been regarded as a
body of doctrines or ideas available for jurists and legal writers as a
standard for the criticism of existing laws and decisions, in the development
of what Continental jurists call the jurisprudence and the doctrines of the
law. In such a rôle natural law comprises a series of subjective and
objective standards which may be used to determine the justice or
reasonableness of legal rules. To some, these standards are universal and
immutable. Sociological jurists, on the other hand, find in the natural law
with a variable content standards adapted to the times and conditions which
measure the reasonableness or justice of the rules enforced in a given society.
The political thought of the Middle Ages was affected by the ideas of
government based on popular consent, of natural rights belonging to the
individual, and of theories of contract as a basis of civil society. From such
ideas arose a belief in higher laws which result from the common feelings and
sentiments of the people. Concepts of law and of rights were traced to this
popular source. The Historical School of jurists, though repudiating earlier
doctrines of natural law, merely paved the way for another type of higher law
doctrine — one arising from the settled customs and traditions of the
The adherents of natural law fall into three main groups. First, those who
place superior laws of a fixed, immutable character, usually religious or
ethical in origin, over and above all the acts and rules of mankind. Following
the Absolutists in their approach to philosophical problems they look upon
lawmakers and judges as seekers "among divine sources for pre-existing
truth." The inexorable rules
of natural law may be discovered or not, but failure to abide by them will, in
the course of time, result disastrously. Some of the theories of natural rights
also predicated an immutable order with eternal laws, but rights and laws were
among the inherent qualities of man in such an order. These rights, too, were
to be discovered and applied but not changed. It is interesting to see how the
absolutist concepts of natural law and natural rights keep recurring in legal
thought whether founded on religious sanctions or on the inherent qualities of
The second group of thinkers undertake to find the underlying principles of
law in the customs and the social life of man, or in the interests and duties
of man as a human being. Recently theorists with this approach have sought the
fundamental legal rules in community sentiment, the feeling for right
(Rechtsgefühl), or in the concept of social solidarity. With a
slight turn in emphasis this method of finding natural law leads to a
"natural law with a variable content." Viewing higher law notions in
a broad sense this group comprises some of the foremost analysts of legal
phenomena on the Continent of Europe.
Natural law as an idealistic, progressive, and critical concept is what the
third group is expounding. Interested in the philosophy of the law, they seek
"the rational element which enters into the complex product of the
legislation of every nation.... In practice, it is still often called by the
name 'natural law,' which is opposed to the term 'positive law.' ... It is the
ideal of the positive law, the type which the lawmaker ought to realize, and
almost always pretends to realize." When, as with Stammler, the philosophy of
law becomes the theory of propositions about law which have universal validity,
one is in the field of natural law ideas.
In European political thought it is the ideal, progressive, and critical
function of natural law which is uppermost. Whatever its sources or sanctions
maybe the chief proponents of higher law ideas are not engaged in a search for
final legal rules to which all mankind must yield obedience. They are directing
their efforts to the discovery of fundamental principles, of directing norms,
or of established standards by which the reasonableness or justice of legal
rules may be measured. The absolutist, dogmatic concepts of natural law have
been largely replaced by those characterized as "idealistic
It is, therefore, in the realm of jurisprudence and in the development of
legal doctrines that natural law thinking prevails in European legal thought.
Its functions are to guide, to criticize, and to measure the law as made by
legislators and applied by judges so as to keep it in reasonable and just
channels. The natural law concepts, then, whether used by judges or
commentators are, to a large extent, as they were with the Roman jurists,
creative forces in an epoch of progressive law-making.
1. See Tancrède Rothe, Traité de
droit naturel théorique et appliqué, 6 vols. (Paris,
1885-1912). Rothe's work indicates in its incomplete form the inclusive
features of natural law as conceived by certain Catholic writers. Among the
subjects considered in the six volumes of the treatise are: the definition and
nature of law and the state; the duties of men towards others and towards God;
the relations of the individual to government; marital relations, the family
and education; social and individual services, including the conditions and the
rights relating to labor; and the rights of corporate organizations of labor
and capital. A theological school composed of Protestants and Papal
representatives led a reaction against the autonomy of the reason in religious,
moral, and legal matters. For a defence of a metaphysical basis for natural law
and for the philosophy of law, see Boistel, Cours de philosophie da
droit (1899), Appendix.
Vareilles-Sommières, Dean of the faculty of law of Lille, in his
Les principes fondamentaux du droit (Paris, 1889), divides the laws
which are directly divine into natural laws and positive divine laws: "the
natural laws are those which result as necessary consequences and as
[forcement] willed by God, from the nature which he has given to us, and
which manifest themselves to our reason alone....
The natural laws are universal and immutable since they are the necessary
result of the nature of man and of those beings with whom he is in
relation." Pages 20 ff.
Cf. also Theodor Meyer, Institutiones iuris naturalis, 2 vols.
2. Interpretations of Legal History, p. 33.
3. Vico frequently referred to the idea of a law of
nature. He was one of the first to insist that it was not a fixed but a
progressive law — "a law varying with the stage of growth reached by
a given community." Cf. G. de Montemayor, Storia del diritto
naturale (Naples, 1911), especially chap. 11; Croce, The Philosophy of
Vico, trans. by Collingwood (London, 1913); Benvenuto Donati, Domat e
Vico, ossia del sistema del diritto universale (Macerata, 1923).
4. I presupposti filosofici della nozione del
diritto (1905); Il concetto del diritto (1906); Il concetto della
natura e il principio del diritto (1908), translated under the title The
Formal Bases of Law in Comparative Legal Philosophy Series, X (Boston,
1914); cf. chap. 3.
5. The Formal Bases of Law, p. 18.
6. Ibid., pp. 76 ff., 258, 321, 333. For
citations to Italian articles and works defending natural law, see
ibid., p. 19.
7. See H. J. Randall, "An Italian Exposition of
the Law of Nature," Law Quarterly Review, XXXIII (April, 1917),
8. "Sui principi generali del diritto,"
reprint from Archivio Guiridico, XXXV, 4th ser., vol. I, fasc. 1, pp. 21
ff. I am indebted to Professor Del Vecchio for reprints of several of his
articles and lectures on natural law. He has kindly consented to the use of
translations of portions of his "Sui principi generali del diritto."
9. Del Vecchio, op. cit., pp. 34-42.
10. Georgio Del Vecchio, "Positive Right,"
Law Magazine and Review, XXXVIII (May, 1913), 297.
11. Del Vecchio, "Positive Right," op
cit., p. 306. Positive right is that which at any given moment
effectively governs the life of a people and hence is not restricted to rules
established by statute.
12. The Formal Bases of Law, pp. 52 ff.
13. "Sui principi generali del diritto," pp.
23-25, or "Les principes généraux du droit," trans.
into French by E. Demontes with a Preface by R. Demogue (Paris, 1925), p. 25,
or "Die Grundprinzipien des Rechts," trans. by Albert Hellwig, pp.
14. "Sui principi generali del diritto," pp.
47-49; "Les principes généraux du droit," pp. 50-52.
15. The Formal Bases of Law, p. 326. For other
recent Italian interpretations of natural law, consult G. Brunetti, "Il
diritto naturale nella legislazione civile," Rivista del diritto
commerciale, XX (1922), Nos. 8-9, and M. Cordovani, "Il diritto
naturale nella moderna cultura italiana," Rivista internazionale di
filosofia del diritto, IV (1924), No 2.
16. V. Cathrein, Recht, Naturrecht und positive
Recht, Eine kritische Untersuchung der Grundbegriffe der Rechtsordnung (2d
ed., 1909). Geny speaks of this work as "imbued with the pure tradition of
the Catholic Church," Science et technique en droit privé
positif, II, 295; see also G. Platon, Pour le droit naturel —
Apropos du livre de M. Hauriou; Les principes du droit public (Paris,
17. Op. cit., pp. 14 ff., and Geny, op.
cit., II, 301.
18. Op. cit., pp. 16-41, and Geny, II, 302. For
approval of Cathrein's views by Geny, see II, 307 ff. Cf. also Gutberlet,
Ethik und Naturrecht (3d ed., 1901).
19. Op. cit., pp. 145 ff.
20. Ibid., pp. 252, 253.
21. Geny thinks supernatural theorizing is not an
essential part of Cathrein's work and he refers to Boistel and Cathrein as
modern representatives of the classical conception of natural law. Op.
cit., II, 350.
22. For a similar method of analysis, see James
Lorimer, The Institutes of Law: A treatise of the Principles of
Jurisprudence as Determined by Nature (2d ed., London, 1880).
A modernized form of the version of natural law of St. Thomas is in The
Catholic Encyclopaedia, where natural law is regarded as comprised of three
first, a discriminating norm, which is of the essence of
human nature itself as a reflection of the divine nature; second, a binding
norm, which is evidenced in the divine authority requiring that individuals
live in accordance with the first norm; and third, a manifesting norm,
which is the result of the efforts of reason to determine the moral qualities
of actions as limited by the first norm.
23. Op. cit., pp. 222 ff.; Geny, op.
cit., pp. 314 ff.
24. Ernst Troeltsch, Naturrecht und Humanitat in
der Weltpolitik (Berlin, 1923).
25. Op. cit., I, 16. He agrees with Phillipson
that "as in science, metaphysical entities are being more and more
imported, so in the sphere of law will those principles of natural law come to
be more and more emphasized, through the ineradicable promptings of the
intuitive consciousness of men and of states." Great Jurists of the
World, p. 343.
26. Op. cit., pp. 43, 44.
27. Ibid., II, 10, 12.
28. Op. cit., IV, 72 ff.
29. Ibid., p. 78.
30. Cf. criticisms by Edouard Lambert on the practice
of interpreting the general and vague phrases of written constitutions in the
United States in Le gouvernement des juges et la lutte contre la
législation sociale aux États-Unis (Paris, 1921).
31. Geny, op. cit., IV, 87.
32. Ibid., pp. 81 ff.
33. Ibid., IV, 91.
34. Ibid., pp. 101, 102.
35. Geny, op. cit., IV, 137 ff.
36 Ibid., II, 312 ff.
37. Ibid., IV, 213, 214. Saleilles remarks on
Geny's concepts of natural law that he does not maintain that for a given
institution there is a body of rules which possesses at least rational
existence and which can be formulated into absolute truths; he does not
maintain that on a given point any solution can appear in its concrete
expression as a formula of natural law; he only contends that in the
formulation of a judicial or legal rule judges and legislators have the right
and the duty to be guided by ideas of justice, principles of reason, and axioms
of equity, the philosophical forms of which would be the expression of
immutable and intangible truths for all civilized peoples, "École
historique et droit naturel," Revue trimestrielle de droit civil, I
(1902), 87 ff.
38. Reviewing Geny's last volume of the Science et
technique en droit privé positif, E. H. Perreau calls this the work
of a true Benedictine "Le conflit du droit naturel et de la loi
positive," Revue General du droit, XLIX (1925), 27.
39. Malberg consigns these so-called rules of natural
or divine law to the moral or political realm and concludes that "it is a
capital error of the jurists that they persist in supporting the doctrine of
'natural law,' an error from which it would be desirable to free the science of
law for a long time." To Malberg a rule of law in the true sense can
proceed only from the state, which by its superior force can give it a
sanction. Contribution à la théorie générale de
l'état, I (Paris, 1920), 237.
40. "Jus naturae et gentium; Eine Umfrage zum
Gedächtnis des Hugo Grotius" in Niemeyers Zeitschrift für
Internationales Recht, XXXIV (1925), 113-189.
41. Comments of Philip Marshall Brown, ibid.,
42. See Niemeyers Zeitschrift für
Internationales Recht, XXXIV, opinions of Fritz Fleiner, University of
Zurich, pp. 121, 122; Friedrich Giese, University of Frankfort, p. 141; Eduard
His, University of Zurich, pp. 142-144; Sir T. Erskine Holland, Oxford
University, pp. 144, 145; Christian Meurer, University of Würzburg, p.
160; Karl Neumeyer, University of Munchen, p. 161; Karl Strupp, University of
Frankfort, pp. 173, 174; Heinrich Triepel, University of Berlin, pp. 187, 188.
43. To this group belong Charles Dupuis, Institute of
International Law, Paris, ibid., pp. 120, 121; Walter Burckhardt,
University of Berne, pp. 118, 119; Alexander Pearce Higgins, Cambridge
University, p. 142; George Kleinfeller, University of Kiel, p. 150. Recognizing
that the prevailing view among English authorities on international law is that
of the Positivist School, Professor Higgins says "appeals are, however,
made to the underlying principles of the Law of Nature under the name of Reason
or Justice when a test is sought for existing rules, or as a means of
suggesting new rules to fill the gaps in the law which modern conditions
disclose." Ibid., p. 142.
44. Rudolf Laun, University of Hamburg, ibid.,
150-152; T. de Louter, University of Utrecht, 152; Joseph Mausbach, University
of Münster, 152-160; Otto Opet, University of Kiel, 161, 162; Robert
Piloty, University of Würzburg, 163, 164; Nicholas S. Politis, University
of Paris, 165; Louis Le Fur, University of Paris, 122-140; Edgard Roubard de
Card, University of Toulouse, 168, 169; André Weisz, University of
45. Niemeyers Zeitschrift für Internationales
Recht, XXXIV, 166 ff.; cf. Ernst Troeltsch, op. cit.
46. Niemeyers Zeitschrift fur Internationales
Recht, XXXIV, 169-171. Duguit finds a real basis for international law in
certain international norms exterior to the action of any individual state,
which must form the basis for valid joint action in the form of legal rules of
conduct. Traité de droit constitutionnel (2d ed.) I, 99 ff.
47. Niemeyers Zeitschrift fur Internationales
Recht, pp. 122-140. See also, "Le droit naturel ou objectif
s'étend-il aux rapports intemationaux," reprint from Revue de
droit international et de législation comparée (1925). Le Fur
states that he uses the terms "natural law" (droit) and
"objective law" interchangeably and that "the second expression
has gained general approval today in all countries; but the first one is the
traditional expression, and the idea which it expresses rests on a very just
basis, if one frees it from the errors which became incorporated in it during
the eighteenth century (where, rather than a natural law, one speaks of a law
of nature, having in mind a supposed state of primitive nature which would be a
state of isolation). Nothing therefore keeps us from reclaiming this
expression, once it is freed from the purely adventitious errors which had
found their way into it, and this is, in fact, what every one is inclined to do
today." Ibid., p. 60.
Portions of this article have been translated and are included herewith by
the special permission of Professor Le Fur. See also, by the same author,
"Le droit naturel et le droit rationnel ou scientifique: leur rôle
dans la formation du droit international," Revue de droit
international (July, August, and September, 1927); and "La
théorie du droit naturel depuis le XVIIIe siècle et la doctrine
moderne" (Paris, 1928)
48. Le Fur, Revue de droit international et de
législation comparée (1925), pp 61, 62.
49. Le Fur, Revue de droit international et de
législation comparée (1925), p. 62.
50. Ibid., p. 64.
51. Le Fur, Revue de droit international et de
législation comparée (1925), p. 66.
52. Ibid., p. 67.
53. Ibid., p. 68.
54. Ibid , pp. 78, 79. An attempt has been made
in France as well as in other countries, to base international law on the
individualistic doctrine of the origin of law. It is called the theory of the
fundamental rights of states. Just as an individual is regarded as having
certain inherent rights, so states, it is asserted, have fundamental natural
rights which must be respected by all other states. There exist, it is claimed,
among the states fundamental, primitive, and absolute rights, rights which
belong to every state in its relations with other states. Among some of the
rights mentioned are independence, equality, respect, and international
commerce. A. Pillet, "Recherches sur les droits fondamentaux des
états," Revue générale de droit international
public, V (1898), 66, 236; VI (1899), 503. For an American version of such
fundamental rights, consult James Brown Scott, "The American Institute of
International Law: Its Declaration of the Rights and Duties of Nations"
(1916), and comments by Elihu Root in American Journal of International
Law, X (1916), 211.
55. Cf. "Le droit naturel, le droit rationnel ou
scientifique," op. cit., p. 37.
56. Essays in the Law, p. 63.
57. Ibid., pp. 63, 64. Cf. opinion of the
English law officers (including Lord Mansfield) in the case of the Silesian
Loan, that the law of nations is founded upon justice, equity, convenience, and
the reason of the thing and confirmed by long usage." Holliday's Life
of William Earl of Mansfield (London, 1797), p. 428.
58. W. S. McKechnie, "Magna Carta
(1215-1915)," Malden, Magna Carta Commemoration Essays, pp. 22, 23.
59. Lord Russell remarks on the employment of the
natural law method in modern international law, "International Law and
Arbitration," American Bar Association Reports, XIX, 253, 268.
60. James C. Carter, Province of the Written and
Unwritten Law, p. 9.
61. "The Latin group and the German group (which
we shall combine here for brevity under the name of 'continental') admit the
existence of law beyond the sphere of positive law; that is to say, they accept
the existence of jural relations, although these relations may not have been
validated by the legislator. Formerly these factual relations were evolved out
of human nature (natural law); today they are predicated on conscience and
public opinion which furnish the elements necessary for their support."
Alejandro Alvarez, "New Conception and New Bases of Legal
Philosophy," Wigmore Celebration Legal Essays (Chicago, 1919), pp.
62. Boistel, op. cit., secs. 1, 2. "The
natural-law school seeks an absolute, ideal law, natural law ... by the side of
which positive law has only secondary importance. The modern philosophy of law
recognizes that there is only one law, the positive law, but it seeks its ideal
side and its enduring idea." Berolzheimer, System der Rechts- und
Wirtschaftsphilosophie, II, 17.
63. Cf. Zeitschrift fur Rechtsphilosophie, I,
Next | Previous | Contents |
Title Page | Text
Version | Liberty Library |