Philosophy Matters — Why we need Natural Law.
The Natural Law: A Study in Legal and Social History and Philosophy by Heinrich A. Rommen
This is a fascinating and illuminating text.[1] I have an extensive background in Thomism, so reading this was like visiting with a wise, older friend who can share his wisdom and connect many dots for me. However, It may also be a good introduction for those without a background in this subject. Dr. Rommen starts with the beginning and then builds from there to his conclusions in an orderly and accessible manner.[2]
Part of the interest I had in this book was its historical provenance. Dr. Rommen was a Catholic anti-Nazi. Dr. Rommen was born in Cologne, Germany, in 1897 and died in the United States in 1967.[3] He worked for Catholic Social Action from 1928 to 1933. Hitler shut down Catholic Social Action in 1933 as part of the Nazi move to shut down all independent Catholic groups. Dr. Rommen was probably a member of the Catholic Center Party, so it is not surprising that he was arrested by the Nazis at some point. He remained under police surveillance until he left Germany in 1938. While under police surveillance, he wrote this book — The Natural Law — published in 1936.
With that background, I was surprised by how little Dr. Rommen had to say about the Nazis or totalitarianism. He would have been at great personal risk if he had condemned the Nazis in his writing. Still, it seemed to me that his general attitude was that the “perennial philosophy” would survive whatever ephemeral difficulties he was going through. His point was to elucidate the ideas of that philosophy.[4]
On the other hand, the book in its entirety can be read as a condemnation of totalitarianism in both its National Socialist and Communist incarnation. The thesis of Dr. Rommen’s book is that law is law because it is founded on reason, not on will. Dr. Rommen’s bete noir is “positivism,” which asserted that law is law because it represents the will of someone, i.e., the powerful, and can compel compliance by force. The Nazis made quite a bit of the will, as did the Communists. In his conclusion, Dr. Rommen makes this point explicit:
Modern totalitarianism with its depersonalization of man, with its debasement of man to the position of a particle of an amorphous mass which is molded and remolded in accordance with the shifting policy of the “Leader,” is of its very nature extremely voluntaristic. Voluntas facit legem: law is will. How seldom the theorists and practitioners of totalitarianism mention reason, and how frequently they glory in the triumph of the will! The will of the Leader or of the Commissar is not bound by or responsible to an objective body of moral values or an objective standard of morality revealed in the order of being and in human nature. The will is not bound by the objective, conventional meaning of words or by the relation of these to ideas and things.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
In the first part of the text, Dr. Rommen turns to a survey of history. He explains that natural law had roots in antiquity. He points to Heraclitus, who “flashed” on the “idea of an eternal law of nature that corresponds to man’s reason as sharing in the eternal logos.” Surprisingly, the Sophists contrasted their social criticism based on what is naturally right against what is “legally right.” Callicles, who was the first to advance the idea that “might makes right,” criticized that idea.[5] In contrast to Plato and Aristotle, who justified slavery, Alcidamas wrote, "God made all men free; nature has made no man a slave.” Antiquity ends with the Stoics who fashioned a robust idea of natural law that stood outside the human order and was modeled on the Logos, the ordering of reality accessed through human reason.[6]
Dr. Rommen then turns to Christian ideas about natural law. The doctrine of natural law was transmitted to the medieval Catholic Church through both the Church Fathers and through a study of Roman law and the development of canon law. The great exponent of natural law thinking in Scholasticism was St. Thomas Aquinas. Aquinas, however, was almost immediately followed by William of Ockham, who set up competing views of law, one as “lex ratio” (Law is reason) and “lex voluntas” (Law is Will). The competing views are reduced to a priority question: reason or will? Rommen’s explanation here is helpful:
The result has been that natural law is the consequence of the doctrines of the priority of the intellect over the will (law is reason) in both God and man, of the knowability of the essences of things and their essential order, their metaphysical being and the ordered hierarchy of values. Positivism, on the other hand, is the consequence of the doctrine of the primacy of the will with respect to the intellect in both theology and human psychology. Besides, voluntas here means more than mere will: it denotes passion, irrational appetite, and so on. Positivism signifies the renouncing of all efforts to know the essences of things (nominalism), the repudiation of the metaphysics of hierarchized being and value. Accordingly it is also found in the same conceptual pattern in the thinking of the nineteenth and twentieth centuries, even though it is concealed under different names.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
The difference between “ratio” and “voluntas” is whether we have a reason to comply with the law or do it because we are told to do it. Another difference is whether the obligation is based on something objective (and, therefore, eternal) or a matter of convenience that can be changed. For Aquinas, the obligation came from the eternal nature of the subject, something which could not be changed without changing the nature of the subject. The contrary position says that the obligation can be changed while the nature of the subject remains unchanged. So, human nature is rational. Since the telos of everything is their perfection, the telos of humanity is rational and intellectual, which cannot be changed without changing the nature of human beings. For such a being, if it was irrational to murder one’s children yesterday, it would remain irrational tomorrow, even if God says to do it. On the other hand, Voluntarists place the obligation to follow the law in God’s will. God could say that parents should kill their children tomorrow, and the parents would be obligated to do so, even if they thought it didn’t make sense and violated their nature.
Dr. Rommen offers this explanation:
Here teleology, the doctrine of ends or final causes, enters the scene.6 The essences of things, which are exemplifications of the ideas conceived by the divine intellect, constitute at the same time the end or goal of the things themselves. The perfection or fulfillment of the things is their essence: formal cause and end are one (causa finalis is ultimately identical with causa formalis). Accordingly in the essential nature of the created world, as it came forth in conformity with the will of the Creator, are imbedded also the norms of its being. In the essential nature is likewise founded essential oughtness, the eternal law, which is God’s wisdom so far as it directs and governs the world as first cause of all acts of rational creatures and of all movements of irrational beings. The eternal law, then, is the governance of the world through God’s will in accordance with His wisdom. This law is thus the order of this world. Creatures fulfill this law in conformity with their nature as it has been fashioned by God: from the lifeless and inorganic realm of creation, through the living but dumb creatures, to the rational and free beings.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
He summarizes this as follows:
Oughtness, not blind compulsion and necessity, characterizes the way man obeys the law.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
In other words, the statement of Hume that “an is does not imply an ought’ is flat wrong.[7]
Natural law went through a secular iteration under Hugo Grotius to deal with international issues. However, lex voluntas was obtaining strong adherents in the English-speaking world in the philosophy of Thomas Hobbes.[8] Locke accepted “a belief in natural law as a dictate of common sense.”[9]
There was a turning away from natural law in the works of David Hume who presented the lex voluntas worldview in terms that have shaped the modern world. Thus, Hume describes Reason as “only the slaves of the passions.” For Hume, there was no objective moral principle:
Hume’s dissolving criticism leaves no method for determining what is intrinsically good or bad in these passions and in the acts that proceed from them. Whatever may be the moral principles that guide our actions, they are not founded on objective truth and on reason. Indeed, they are not principles at all. They are only names, symbols for emotions, i.e., for feelings of pleasure and pain. What the earlier philosophers called natural law is but a common name conventionally agreed upon for moral sentiments of approval or disapproval. Thus the morality of an action is determined not by its conformity with reason but simply by the sentiment of approval: “Morality is determined by sentiment.” As a consequence, Hume defines “virtue to be whatever mental action or quality gives to a spectator the pleasing sentiment of approbation; and vice the contrary.”
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
In the nineteenth and early twentieth centuries, this trend continued in the primacy of “legal positivism.” “Legal positivism” was very much in tune with the era. “Positivism” is “a consequence of an empiricism narrowing of reality as a method.” “Positivism” describes the “positive law,” which is “the boundary, fixed for the time being by the social groups struggling for power and influence in the state, of their authority and their influence.” Under “positivism”:
Law is thus not a genuine norm. It does not tell what ought to be, but is merely an indication of how far the power, the material and psychological power, of the ruling class extends.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
Positivism still holds sway. Despite the importance of natural law theory in the drafting of the American Constitution, adherents of natural law thinking are often treated as enemies of decency. Consider then-Senator Biden’s questioning of Supreme Court nominee Clarence Thomas, where Biden was winking at Thomas based on Biden’s putative inside knowledge as a Catholic. It was a weird performance on Biden’s part but illustrates how the secular left fears natural law (although, like Marx, it will “thunder like an Old Testament Prophet” about injustice when it finds a law it doesn’t like, such as the requirement that a voter present an ID card. [10]
https://www.c-span.org/video/?c4887077/user-clip-biden-natural-law
The second part of the text involves a consideration of different topics.
First, Dr. Rommen returns to the relationship of “oughtness” to “being.” Thus, things that exist have a particular nature. They seek to perfect that nature. They ought to perfect that nature since to do the opposite is evil and the “good is to be done.”[11] Therefore, “being” implies “oughtness.”
This turns the modern philosophy of Hume and Kant on their head. Modern philosophy places the root of ethics in psychology or sociology, which is tremendously convenient to those who want to reconstruct society in their chosen image. Dr. Rommen observes:
For Pufendorf, Kant, and others, who have no realistic epistemology, not being but some impulse or other, a special property like sociality or a postulate of practical reason like freedom, is the source of oughtness, the principle of ethics and of natural law. Deductive reason is thereby freed from control by reality and consistently indulges in an increasingly hollow rationalism which, to be meaningful, borrows continually from the actual political and sociological ideals of the age. Natural law in the strict sense is therefore possible only on the basis of a true knowledge of the essences of things, for therein lies its ontological support.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
In contrast, natural law requires a continual interaction with ontological reality. As I pointed out in my essays on DC Schindler’s book “The Post-Modern Predicament,” (and here), this contact is necessary for human life since we will not flourish as solipsistic narcissists.[12] Dr. Rommen makes the same point as DC Schindler in the following:
Hence the great importance of experience, the incessant self-orientation toward reality which is the norm of thought. Continual experience of reality, not a sort of geometrical deduction from a principle, is the adequate method. This is all the more important, too, the farther thought wishes to proceed with its deduction. St. Thomas himself requires experience in particular for moral philosophy and the science of law. Not doctrine, but experience over a long period of time proves the goodness of a law.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
The move from “is” to “ought” is also found in Dr. Rommen’s discussion:
Knowable being is the principle of oughtness. The supreme principle of oughtness is simply this: Become your essential being. For the rational, free nature of man this signifies: Act in accordance with reason; bring your essential being to completion; fulfill the order of being which you confront as a free creature.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
Thus, at a high level, for a person to understand law, he must understand metaphysics, which may explain why modern elites are not natural lawyers. It is far easier to scream “RACIST!!!” than to comprehend Aristotle.[13]
The idea of Lex Ratio leads to a definition of “law”:
Accordingly law is a general rule of reason which is directed to the common good, emanates from public authority, and is duly promulgated.8 The will, too, is included therein. For the framing of a legal decree is just as essentially an act of the will, but only on the basis of a precedent rational weighing of the ends and means which concern the law. A rule that does not issue from the activity of reason, an arbitrary rule or an arbitrary decree, “would savor of lawlessness rather than of law,” says St. Thomas categorically.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
Question: Would an arbitrary law be a law? The answer would be “no” according to this definition. Under the lex voluntas, or the legal positivist, view, the answer would seem to be “yes.”
The content of natural law includes private property:
The institution of private property is of natural law. In the long run man cannot exist, cannot make good his right to marriage or to a family or to security of life, and cannot maintain his sphere of individual right to a life of his own, unless he is entitled to ownership through the acquisition of goods.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
It also includes the family:
The family is prior to the state. The state may never take over entirely the end and functions of the family, even though it may have the duty, in virtue of its right of guardianship, to intervene in case this or that family is delinquent in its own duty.42 It is likewise competent and obligated to re-establish, whenever necessary, the natural foundation of the family in economic life and in legislation through such measures as housing projects, a family wage, tax exemption or alleviation, reform of marriage legislation, protection of parental rights. Such necessity is present whenever a general failure in their essential functions on the part of concrete families is due to a faulty economic or juridicoethical evolution (e.g., in the case of the propertyless, proletarian family of modern capitalist society).
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
Dr. Rommen also clarifies a concept I struggle with in reading “Good and Evil Actions” by Steven J. Jensen about the notion of the common good and the good of the individual. Dr. Rommen explains:
For this reason, too, the common good is not really separated from the good of the individual members. Rather, a coincidence takes place, just as the health of an organism is indeed predicated of the entire organism, yet consists in the fact that the organs are sound and in good order.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
For Aquinas, the greatest good is the “order” of nature. It is not the collective but rather the way in which individuals are ordered to each other. This would seem to mean that the good of the individual is at least integral to the greatest good of the order of nature or to the order of society. An injustice to an individual strikes at the order of society and, therefore, undermines the greatest good.
Consequently, natural law is far more protective of pluralism than positivism. Dr. Rommen explains:
To the natural law corresponds a genuine pluralism, from which the principle of the subsidiarity of the state takes its origin. The natural-law sub-political spheres in which the individual person lives his life (the family, the local community, the nation in its occupational groups) are autonomous partial or imperfect societies with ends of their own. These societies combine organically for the ordering of the common good in the same way as the persons and communities which never lose their proper being are joined together in the organic unity of the state. Such societies are not, consequently, mere genetico-historical rudiments of the state. They are not stages of the social process that gradually wither away. On the contrary, they are enduring institutions, and their specific functions can never by wholly and permanently taken over and fulfilled by the state.51 The opposite view rests upon the inherently false antithesis between individual and state. It either removes social life entirely from the political sphere (liberalism), or it makes all community life a matter of complete state control (Russian Communism, Italian Fascism, German National Socialism).
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
Natural law understands subsidiary groups, such as the family, the Rotary Club, and the Methodist Church, are part of the order of society. Eliminating these groups strikes at the Common Good, i.e., the good of the order of society.
In contrast, the theme of positive law is “What have you done for me lately?” Sometimes, the answer is that they stand in the way of the totalizing vision of utopia that positivists define as the Highest Good. When that happens, Communists and Nazis have no problem with liquidating Kulaks and Jews.[14]
At the close of the first quarter of the 21st century, we are facing a powerful resurgence of positivist ideas. These ideas resemble those of the Twentieth Century positivists in their distortion of words and erasure of history. Remarkably, they demand that we deny the objective reality that we see before us.
Those who believe in pluralism, objective reality, or legal rights — the things that made the West a flourishing civilization — cannot compete with the tools of sophistry. The answer is to recover the perennial philosophy of natural law. Dr. Rommen offers this in his conclusion:
The will of the Leader or of the Commissar is not bound by or responsible to an objective body of moral values or an objective standard of morality revealed in the order of being and in human nature. The will is not bound by the objective, conventional meaning of words or by the relation of these to ideas and things. Ideas, as well as the words which express them, are mere tools for the will: they are to be remolded whenever this is expedient. Accordingly an appeal from decisions of this will to natural law, to intrinsic right, to justice and equity, to ideas, must appear as “treason” which stems from democratic decadence or from bourgeois prejudices. The defense against totalitarianism cannot plead greater efficiency, more economic productivity, which are the categories in which the totalitarian “social engineer” thinks. Such a defense must appeal to justice, to the rule of reason; it must plead in the name of the natural law and of the natural rights of human persons and their free associations. Natural law is not only an ideal for the positive law, for legislation to realize; it is also a critical norm for the existing positive law.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
Appealing to reason.
It’s a crazy idea.
Let’s hope it works.
Footnotes:
[1] As always, if you like this type of thing.
[2] Kudos to the translator, as well.
[3] Here is a short biography of Dr. Rommen.
[4] Dr. Rommen probably does not refer to the “Perennial Philosophy” that Aldous Huxley wrote about. This source defines the concept as “a group of universal philosophical problems, principles, and ideas (as concepts of God, freedom, and immortality) that perennially constitutes the primary subject matter of philosophical thought: the foundations of Roman Catholic Christian principles especially as philosophically formulated by St. Thomas Aquinas and Neothomists.”
[5] This is somewhat unclear. Dr. Rommen writes:
Callicles, if we are to trust tradition, stood forth as champion of the doctrine of the right of the stronger, i.e., that might makes right. A pure materialist in his philosophy, Callicles reached the conclusion that law, such as obtained in the Athenian democracy, was in reality injustice.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
[6] Dr. Rommen opines that Aristotle was not the “father of natural law”:
Aristotle, however, as should now be clear, was not the father of the natural law. Nevertheless his theory of knowledge and his metaphysics have provided ethics, and consequently the doctrine of natural law, with so excellent a foundation that the honorific title, “father of natural law,” is readily understandable.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
[7] The “Is-Ought Problem” or “No Ought from is (“NOFI”).” See this article.
[8] According to Dr. Rommen:
In the hands of Hobbes, therefore, the natural law became, paradoxically enough, a useless law, compressed into the single legal form of the social and governmental contract of subjection. The natural law effectively comprises only the basic norm, “agreements must be kept,” if one disregards the still more paradoxical natural law of the state of nature with its norm of selfishness. All else is pure will. Hobbes’ doctrine is the theodicy of Occam secularized, and the extreme consequence of the proposition that law is will.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
[9] Many of Rommen’s passages are a delight to read. Some of his ideas reach aphoristic excellence. Here is one:
In Locke, therefore, we have an excellent example of the revenge which common sense so frequently takes upon empiricists and philosophical skeptics. Locke allowed his common sense to affirm in practice what his philosophy implicitly denied. In this he was like Karl Marx, the most typical instance of such behavior. Marx was wholly intent upon destroying, as a merely instrumental ideology, the ideas of justice and truth. Yet at the same time he thundered like an Old Testament prophet against the injustices and deceits of bourgeois society and philosophy. He thereby implicitly affirmed justice and truth as objective and transcendent, and not as merely relative to and immanent in the conditions of socio-economic production.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
[10] It’s about sex; it’s always about sex. This is a two-star review of Dr. Rommen’s book from Amazon:
Natural Law Theory (NLT) was widely discredited by David Hume in his Treatise on Human Nature (1740) and by G. E. Moore in his Principia Ethica (1903), both well before this book was published in Germany during the rise of Nazism. For historical assessments, several texts do a much better job in presenting the historical rise through Stoicism and finally its demise in the Age of Enlightenment. Today, only the Roman Catholic Church, and specifically its Moral Theology, embraces Thomistic Natural Law as its bogus basis for sexual prohibitions (contraception, abortion, homophilia). If a moral reason exists for these prohibitions, it is NOT from Natural Law Theory, it is NOT from the Moral Imperative of the Harm Principle, and it is NOT from Aristotlean Ethics. The Church and those who appeal to Natural Law Theory commit the Fact/Value Fallacy, and the notion that god built a moral system on a fallacy should put this nonsense to rest.
The reviewer and Biden are on the same page—natural Law Theory may have given us a robust understanding of human rights that are not dependent on the State and can, therefore, be appealed to when the State turns oppressive, but if it doesn’t affirm our sexual practices, then out it goes!!!
[11] “As self-evident principles, only two norms belong, properly speaking, to the content of the natural law in the narrow sense. These are: “What is just is to be done, and injustice is to be avoided,” and the age-old, venerable rule, “Give to everyone his own.”
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
[12] This footnote is a marker for a book I am reading on the philosophy of Dionysius who identifies “knowability” with “goodness.” I think that this might be understood better as identifying “knowability” with “truth” particularly since being, goodness, truth, oneness, beauty, and intelligibility are all convertible:
Hence a being, so far as it is intelligible, is also true. All that is is true, because it is knowable. But the essence (form) which constitutes the real thing in its being is also the end, the final cause, of the thing.
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
[13] “Natural law, of course, implies an ultimate unity of essential being and oughtness.”
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
[14] “Positivism is incapable of a correct view of these things which form the basis of the life of the state. The doctrine of the natural law, on the other hand, can give to the state a true ethical foundation through the morality in law.”
Rommen, Heinrich A.. The Natural Law: A Study in Legal and Social History and Philosophy (NONE) . Liberty Fund Inc.. Kindle Edition.
