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## XII. ROUSSEAU

Jean Jacques Rousseau (1712-1778) in his *Contrat Social* (1762), gives an explanation and justification of the State as conceived by the citizen of a democracy.

Men are born free, but the State of nature would lead to the triumph of the stronger if people did not associate themselves for mutual protection. The problem is to find a form of association able to defend and to protect by common strength the personality and the goods of all members while each partner owes obedience only to himself and remains as free as before (Book I, Chapter I).

Rousseau shared with Grotius and Locke the optimistic belief that the natural state of man, which was their common point of departure, will lead to a free and democratic association and will not result in the Leviathan state of the pessimistic Hobbes or in Spinoza's (1632-1677) state in which might is right. He found the solution in the *social contract* by which the rights of each associate are transferred to the community. This is how a moral and collective body is formed: the state and the sovereign.

The end of the state is the common good, which can be achieved by realizing the general will (la volonte generale), i.e., the law issuing from the deliberation of all citizens. The general will cannot make errors and cannot be unjust because nobody is *unjust* towards himself. Consequently, the positive

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law is not subject to a determined ideal but it automatically realizes public utility and justice through the fact that it expresses the general will. The citizens, as individuals, have a natural right which they can use in their quality as men. BY the social pact they have alienated only such part to their power, goods and liberty, the use of which is important for the community. It should be noticed, however, that the sovereign is the only judge to determine this "importance" so that this restriction introduces into the democratic State the germs of absolutism and creates omnipotent democracy.¹

These revolutionary ideas about individual natural rights together with the teachings of the French Physiocrats and Encyclopedists had a considerable share in the preparation of the revolution in North America (which will be dealt with in Chapter XV), and the American Declaration and War of Independence had a stimulating effect upon the political evolution in France.

Rousseau's theories had a great influence upon Immanuel Kant's (1724-1804) concept of State and law. Like Rousseau, he predicted certain limits to the powers of the state, which has to grant its citizens equality, civil independence, and the right of obeying only to laws accepted by the people, but he also ended by conceding practically limitless powers to the State. In principle the people are sovereign and the government is subject to the laws, but this obligation has no sanction and so the individual rights are not guaranteed. Nevertheless, Kant's individualism prevented him from going to the limit of Rousseau in subordinating the individual will to that of organized society. Like Thomasin (1655-1728) Kant separated ethics from law, morality from legality. *Inner Freedom*, the moral autonomy of the individual is the sphere of morality. An action is moral if it is governed by the motive of duty, derived from the autonomy of reason and appearing in the form of the categorical imperative. On the other hand, *external freedom* requires coercive laws. The motive of juridical legislation is not morality but the keeping of external freedom, the carrying out of the coercive measures that are necessary thereto. An action is right, i.e., conform

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to law, if it follows the supreme rule of right: "Act externally in such a manner that the free exercise of thy will, may be able to co-exist with the freedom of the will of all others, according to a universal law."

The legal order is devoid of moral character. "Hence ethical legislation cannot be external (not even that of a divine will)". Thus the impersonal, formal categorical imperative takes the place of the eternal law. Thenatural law is no longer connected with the eternal law, because it cannot be understood as a part of the rational moral law and it is no law as it lacks compulsion which is necessarily included in the concept of law. (Cfr. Rommen, op. cit. 100-102 and Haines, op. cit. 238).

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## XIII. THE FRENCH REVOLUTION

In France the Revolution of 1789 - prepared in the minds of the French people by the philosophers of the XVIII century - sanctioned the individualistic natural law which protects the citizen against the excesses of the political power. Imitating the American Bill of Rights, the French Declaration of the Rights of Man and of the Citizen fixed in solemn terms the essential of the victorious doctrines in the spirit of Montesquieu and Rousseau.

Some typical articles of the Declaration prefixed to the Constitution of 1791 read as follows:

Article 2: The end of all political associations is the preservation of the natural and imprescriptible rights of man; and these rights are: liberty, property, security and resistance against oppression.

Article 3: The nation is essentially the source of all sovereignty.

Article 4: Political liberty consists in the power of doing whatever does not injure another. The exercise of the natural rights of everyman has no other limits than those which are necessary to secure to every other man the free exercise of the same rights and these limits are determinable only by the law.

Article 5: The law ought to prohibit only actions hurtful to society.

Article 6: The law is the expression of the will of the community.

Some years later the natural law theory was definitely formulated by Portalis and published as an introduction to the first project of the French Civil Code. This memorandum distinguished

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between law (droit, jus) and legislative enactments (loi, lex)
and contained among other things the following statements:

Law in the sense of "droit" or "jus" is the universal
reason, the supreme reason based upon the very nature of things.

The laws in the sense of "lois" or "leges" are or should
be only the "droit" (jus) reduced onto positive rules, into
particular precepts. The law (droit) is morally obligatory, but
by itself it does not imply any compulsion. It directs while the
laws in the sense of "lois" (leges) command.

Reason, as far as it indefinitely governs all men, is called
natural law; in the relationships of peoples to peoples it is
called, law of nations (droit des gens).

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XIV. REACTION AGAINST THE SCHOOL OF NATURAL LAW

The exaggerations of the French Revolution brought about a three fold reaction against the idea of natural rights by which this idea was pushed into the background.

(1) In the political domain the Congress of Vienna (1815) resulted in the Restoration of the ancient regimes, though individualism and liberalism, which had permeated the natural law doctrine in the 18th century, remained respected so far as the new constitutions recognized some essential rights of the citizens even against the State. From this time on the life of the states was subject to charters, an evolution that lead to the notion of the "Rechtsstaat".

(2) The 19th century was an essentially law-making period of great codes and so natural law theories were replaced by positive laws also in huge sectors of private law as shown by the several codes of Napoleon.

(3) The jurists and philosophers took also position against the Revolution and the rights of man. They did not abandon the ideal of liberty and it is true that in the course of the 19th century some valuable books appeared which dealt with natural law or the philosophy of law but their interest was chiefly devoted to the positive law.

The criticism against the natural law doctrine came

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from several sources which were wholly different in their basic concepts but united in their common rejection of natural law. They found the essential elements of law not in reason, but in the people's spirit (historical school), in utility (utilitarian school), in expediency (Ihering), in the will of the State (legal positivism), or considered it as a product of social forces (sociologist positivism).

The Historical School

In the first quarter of the 19th century the dominating position of the natural law theory was attacked by Savigny, professor of law in Berlin and by the great German Bandeist Puchta, the founders and leaders of the Historical School of Jurisprudence.

In 1814, Thibaut, a professor at Jena, proposed the elaboration of a civil code for Germany modelled upon the Code Napolean. Savigny answered this suggestion in his famous booklet, *About The Vocation Of Our Epoch For Legislation And The Science Of Law*. He asserted there that the science of law has not yet been sufficiently developed in order to favor the making of a code that would really suit the nation, and explained his fundamental ideas about the nature of law. Even in the first stages of a people's history the sentiment of its particular characteristics penetrate the respective people's private law which is formed by the habits of the people and appears under the aspect of custom. In a more advanced phase, the law progresses by technique, i.e., through the scientific work of the jurists who develop and systemize the law being imbued by national tradition; the result is a living customary law.

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The generating element of law is not the will of the legislator but the popular conscience, the spirit of the people, the "Volksgeist".

The idea of a natural and universal law is thus reversed by the laws of different nations, by laws issued from the intestines of the peoples; the law is dominated by history. The supremacy of reason is replaced by the hegemony of popular beliefs: this is why the historical school is sometimes classified as belonging to romanticism which deprived reason from its sovereign prestige.

## The Utilitarian School

On the eve of the 19th century the English philosopher and jurist Bentham (1748-1832) in his Treaty on Legislation rejected the natural law doctrine as a phantastic and arbitrary theory. He id not care for idealism: he based not only the law but also the moral upon the principle of the general utility. Conformed to utility or to the interest of a community is that which tends to increase the aggregate happiness of the individuals of whom the community consists.

After him Stuart Mill and Herbert Spencer continue the English School of utilitarian moral. Faithful, however, to the traditions of their country, they don't separate the collective good from individual freedom and thus they come sometimes near to the concept of natural law in spite of their opposition to this doctrine.

The great German jurist, Ihering (1818-1892), departed from similar concepts. He does not subject the law to moral premises nor to historical tradition. The essential element

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of law is its purpose (Zweck) which consists in imposing to the
excess of individual egoism a regulatory force in order to as-
sure the conditions of life of the society.

Expediency is then the guiding principle of law and it
often occurs that groups of opposed interests are fighting for
preponderance in order to form the law in their own favor. Man
if fighting for what he considers to be his right and - accord-
ing to Ihering - this fight (Kampf ums Recht) is an action for
good, a sound manifestation of idealism. The State will throw
the weight of its power to the side where there is the general
interest. The unique source of law is the State because the
State alone is able to apply compulsion which is inseparable
from the notion of law.

Legal Posi-
tivism

Savigny did not want to distinguish between positive and
rationsl law, and he did not recognize the State as the only
creator of law; he was a nationalist and had no inclination to-
wards individualism. Ihring attached the law closely to the
State; he considered it as a result of the fight between priva te
interests; Hegal went so far that he separated the notion of
law from human freedom and placed its exis entirely into the State.

Hegel (1770-1831) refused to make a difference between
the reasonable and the real; he spiritualised the State as the
synthetical centre of the general interest, the reality of the
moral idea. The State becomes thus the supporter of the "Spirit"
which manifests itself through the universal history, the torch
of which is successively carried by certain peoples predestined
to dominate the other: the Oriental Empire, the Greeks, the

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Romans, and the Germans.¹

Ihering and above all Hegel - by emphasizing the role of expediency and the latter by making the State the spiritual peak of the nation - directed German thinking towards a concept which considers all law as positive, as created by the State, but we find the same concept also in England, where John Austin's analytical school of jurisprudence considered "as the essence of the state a sovereign - a supreme, irresistible, absolute and uncontrolled authority". (Cfr. Austin op. cit. I 86 and Haines op. cit. 71)

One did not believe more in the determining role of the people's conscience or national tradition. Constitution and law (lex) occupied the first rank as the unique source of law. Law is the expression of the will of the political power. The State is the centre of all rules of social conduct that are enforceable by compulsion; only the State can give to a rule the quality of positive law. The unity of the legal system is realized in the State. This is the domination of the State, the school of the "Herrschaft".

Is there a room in this doctrine for some freedom, for

1. This philosophy associates to the State the civilizatory force. Based upon the "will of power", of which Nietzsche became the apostle, this doctrine was the point of departure for the exaltation of the State that fostered the idea of imperialism. At the end of the 19th century a tendency called "ne-Hegelian" represented chiefly by Kohler, insisted upon the notion of "culture" as giving to the law its directive guidance. But it was principally in the 20th century and under the Third Empire of Hitler when Hegelianism found disciples in Germany who harmonized it with the official ideology and deformed the idea of sovereignty so far that they admitted the identity of law and force (Macht ist Recht). In this theory as well as in the Hegelian conception the State is super-imposed to the moral.

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some individual rights of the citizens?

The German specialists of public law, Gerber, Laband and Jellinek, gave an affirmative answer to this question by inventing the auto-limitation of the State-theory. They inject into the State a certain dose of individualism but in virtue of positive law and not under the title of an unwritten natural law.

Law is considered as an emanation from the State and the State as a juridical person bound by the same law. The State limits itself in an autonomous way by rules which prohibit the State from interfering with certain individual freedoms; controversies that may arise between the State and the individuals can be submitted to the judgment of the judiciary power. The subjective public rights deriving from this self-limitation are not incompatible with the State's sovereignty, because if the State grants to its members some constitutional guarantees by its own initiative, and sovereignty means only the State's capacity exclusively to determine itself, it represents the power of the State over its own will and leaves room for the establishment of rules for the State itself.

In this doctrine of legal positivism, morals and law are in juxtaposition. The State is not compelled by higher principles of law or moral existing outside the State to limit its powers in favor of the citizens but it will probably do so in order to prevent a possible anarchy which would be just the opposite of the conditions necessary for the existence of positive law.

Here I only want to mention that legal positivism was

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developed by the school of Vienna (Kelsen, Merkel, etc.) into
the so-called pure theory of law (Keine Rechtsleore). According
to Kelsen law consists in a system of rules which draw their
authority (Geltung) - in a given area during a specified period
of time - from the fundamental norm. The fundamental norm is
a rule that establishes the supreme power and competence in a
political cooectivity. It originates in a historical fact (form-
ation of a State, revolution, etc.). For instance, it is the
fundamental norm that gives to the upper and lower Houses to-
gether the power to establish the Constitution of the State; the
Constitution confers to the legislative power the elaboration of
laws; the legislative body delegates to the executive the power
to edict ordonnaces, or to entitle the individuals to compute
legal acts (to conclude contracts). The creative activity of
all these factors results in a great number of general and in-
dividual norms which form super-imposed layers and the validity
of the last layers depends upon that of the first ones. The
aggregate represents the legal order which is developing by
degrees. Between the creation of law by the legislature and
the application of law through a legal act (a contract), there
is only a difference of degree and not of nature. Legal norms
are merely rules by which a certain conduct is imposed by com-
pulsion upon people living under certain conditions. Kelsen
rejects the concept of human personality and even the personality
of the state which he considers to be a fictitious and idealogical
personification of a system of norms. He identifies the State
with the law: a doctrine called "normativism".

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## Sociologist-positivism

Sociologist-positivism similarly rejects the idea of natural or inborn law and all metaphysical or mystical notion or origin of law. It is, however, distinguished from legal positivism as its centers not around the State but around sociology; it observes law not through the prism of logics but looks at it through reality. For this theory, the juridical reality, the efficiency (Geltung) of the law rests not on the will of a person nor on the will of the State, but it consists in the obedience that a compulsory rule "de facto" encounters in society. Society is given primacy above the State and the method is not dogmatic but empirical.

The legal positivists underline the logical and authoritative features of law and the role of the State - a rather static point of view, whereas the sociological positivists emphasize the spontaneous creation of law by a living society - a dynamic angle of view.

The founder of the positivist philosophy was August Comte in the 19th century. Rejecting all metaphysical thinking not based upon observation and experiment, he tried to find an objective perception alone. Comte conceived social science as a methodical study of social phenomena by the way of observation and hoped to discover social laws like other law of nature. From this perspective law appears as a product of the life of societies and not as a science of principles. As the initiator of a new method of science - sociology - Comte directed legal thought towards new horizons.

In Germany Gierke emphasized the influence of the community (Genossenschaft) and of the collective sense of justice upon the

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creation and the life of law. According to him the moral person
is not a juridical artifice based on a fiction, but a psychological
reality that reacts upon the autonomous formation of rules of law.

In France, Cruet declared that "Le droit ne domine pas
la société, il l'exprime", and Gaston Morin found that law is not
forged by human wills but by the collective forces of groups and
syndicates. The great jurist of the University of Bordeaux, Léon
Duguit, explained that the opinions and aspirations of the masses
living in a society develop a "social-norm" that forbids any
action or abstention contrary to the equilibrium of the group.
The sanction of such a social norm does not come from the State
but from the mass of individuals; when they feel that the vio-
lation of the social norm should be sanctioned by a more or less
organized social reaction, they will impose on the society the
social norm as a compulsory rule. The state of mind of the
masses and its changes are based upon the sense of solidarity and
the sentiment of justice, but they are essentially social facts
and manifest no conception that would dominate the law "apriori".

We haveno room here to follow this interesting evolution
and so we limit ourselves to the statement that sociological
positivism has a considerable influence upon the thinking of our
days, that is has weakened the dominating position of legal
positivism, and that the adherents of the natural law doctrine
attribute an increasing importance to the law-creating role of
social life.¹

See next page for footnote.

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Legal and moral thinking, like economic theories and policies, seem to be evolving through cyclical changes, so that at about the end of the 19th century the predominance of positivism was to give room again to natural law ideas.

Before entering into the details of this revival, we want to deal with the evolution and significance of the natural law doctrine in North-America.

1. Also the Marxist conception gave to society a supremacy over the State but this doctrine is a philosophy of economics and politics rather than a theory of law. Max and Engels considered the economic structure as the real basis, the infrastructure (Unterbau) of society, while law and philosophy belong to the super-structure ("Ueberbau"). In other words, economy alone is determinant, law is only the result of it; in the bourgeois state the law is the means by which the possessing class maintains its domination over the working class. The State has neither prestige nor authority; the coercive and police machinery of the State will be rendered superfluous by the revolution of the proletariat. This was Lenin's opinion before the Russian revolution of 1917. But faced with the realities of life, the Communist doctrine about law and State had developed since. The Soviet State had been organized in an authoritarian form and found its theorists: the law became the command of the State, the means used by the State for realizing its purposes without respect for higher principles of law or morals, freedom or justice.

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CHAPTER XV.
EVOLUTION AND SIGNIFICANCE OF THE NATURAL LAW DOCTRINE
IN AMERICA

The colonists brought with them the common law
containing ideas of natural law. In the beginning educated and
trained jurists as well as local statutes were frequently lacking
and so the judges were guided by the Bible and the precepts of
natural law and natural justice. The difficult conditions of life
encouraged the assertion and protection of individual rights.

After the rather theocratic rule based on an inter-
pretation of natural law in terms of divine law (the Bible) in
early New England (1), individualism, personal and religious
freedom and equality prevailed. Later natural law ideas were
expanded by the widespread use of Blackstone's Commentaries on
Common Law and of Burlamaqui's Principles of Natural Law, the early
English translation of which (1752) served as a textbook. After
1760, when England's rule became arbitrary, American people adopted
with enthusiasm Locke's theories of the Social Pact and inborn,
untouchable rights of man. A literature of protest arose with
quotations from Grotius, Puffendorf, Vattel, Rousseau, Coke,
Vaugham, Dummer, Magna Charta, the English Bill of Rights and the
Bible (B. Wright op.cit.page 67). The teachings about original
freedom and equality were conform to the thinking of the colonists
who left their home-countries in order to evade oppression by
state and Church.

The American Revolution was based upon natural rights
as inherent in the individual.

(1) See Benjamin F. Wright op.cit. page 13-35

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Substantial property owners protested against restrictions imposed by the British Government on their privileges, and so their behavior was conservative. On the other hand, the revolutionary movement became radical, or popular, as it aimed at the establishment of the "equality of man", the "right of separation" and the "inalienable rights". James Otis, Samuel Adams, John Adams, Thomas Paine, Patrick Henry, Alexander Hamilton, Thomas Jefferson, James Wilson (1) and others made frequent use of the natural rights doctrine to support the right of rebellion against the arbitrary exercise of governmental powers. This idea gave a peculiar turn to all legal thinking. The law of the Colonies, the public papers and charters and the first written constitutions bear witness to this.

Most early state constitutions provided for the declaration of such principles of the natural law doctrine as popular sovereignty, limited government (confined to powers explicitly transferred by the people), guarantee of individual rights and separation of powers. The failure of the *Constitution* was partly and perhaps chiefly attributable to far too rigid limits upon its powers, but the leading principle was the elaboration and codification of efficient means against too much centralized arbitrary powers that could infringe upon the liberties of the States and the citizens.

> The characteristic American interpretation of *natural law* is the theory of *natural rights culminating in freedom and equality: their consequence is the concept of a limited government*.
> 
> It gave the theoretical basis for the American doctrine of Civil Liberties which sets limits on all forms of political authority. European democratic ideas were thus made directly applicable to human affairs. This trend was not impeded or pushed back by the temporary decline of the natural rights doctrine in Europe where a marked reaction took place after Napoleon's defeat as we have explained it above.

(1) Cfr. W. Obering op.cit.

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Many of the fathers of the Constitution were the followers of Locke's, Montesquieu's and Rousseau's ideas and the American Declaration of Independence was the first authoritative public document which based the separation from England upon the self-evident truths "That all men are created equal, that they are endowed by their creator with certain unalienable rights; that among these are life, liberty and pursuit of happiness". The part of the Declaration, inspired by Locke, has served as basis for all democratic movements in the world, beginning with the French Revolution.

It affirms that the object of all Government is to guarantee the rights of man; that all government derives its powers from the consent of the governed; that if a government fails to guarantee these rights the duty of the people is to modify or to abolish it. For "property" Jefferson substituted the "pursuit of happiness", a term which had been used in the Virginia Bill of Rights written by Jefferson and it is this substitution that gives the document a note of idealism and makes its appeal an eternally human one. It was this words that gave the masses who were still drived at that time of political rights, the hope that the revolution was made for them as much as for the middle classes. The pursuit of happiness as a guaranteed right of each citizen remained a guiding principle in the US. ad has recently been reaffirmed and given a far reaching economic and social content by the Employment Act of 1946.

As to the Constitution, it had to be a written one in order to guarantee the citizen's fundamental rights by explicit limitations of the central power and of legislation which was deadly distrusted. Most shapers of the Constitution favored a conservative written Constitution and wished to restrict the possibility of its amendment because they were much interested in the protection of property rights and of the minority against the danger of MM oppression by majority rule.

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This trend on thinking was determinant for the
<u>Division of authority between the Federal and State governments</u>
as defined in the Federal Constitution. Only the powers and functions
enumerated in the Constitution were transferred to Congress. "All
powers not delegated to the US. by the Constitution, nor prohibited
by it to the States were reserved to the States or the people as
a whole".

The conflict between the large and small states was
resolved by a compromise proposed by Connecticut: the House of
Representatives would give the states a representation proportional
to their population while the Senate was to be made up of 2 senators
from each state whatever tis importance. The clear delimitation of
the <u>XMXX</u> State Rights shows a parallelism with the method how the
individual rights of each citizen have been defined and guaranteed
by the first 10 Amendments which have been added to the Constitution
as suggested among others principally by Jefferson and as postulated
by the leading states. Thus the dualism of the Revolution is reflected
in the Constitution, the conservative aspect being shown by the
body of the document and the radiate aspect by the so-called Bill
of Rights. This was an exceptionally fortunate solution as up to
now the American people seems to be the only nation on earth which
was able to put an effective end to a radical revolution by adopting
a conservative constitution.

Montesquieu's direct influence on the American Constitution
is evident by the <u>strict separation of federal powers</u>, a finda-
mental principle which no nation and no constitution has realized
with such a rigidity as the federal constitution. Contrary to the
English system, in which the Ministers are Members of Parliament
and responsible to the House of Commons the custom became established
for the President of the US. to choose his cabinet members outside
of Congress and the department heads did not appear before House
or Senate nor could Congress dismiss them. As the President was
replaced every 4 years and the representatives every 2 years there

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might result from these laws 2 years of conflict between the executive and the legislature. In this case the President had the right of veto over the decisions of Congress but Congress could by 2/3 vote override the veto.

In one essential point however the Constitution of the US. deviated from Montesquieu who subordinated the judicial power to the legislative whereas in the US. the Judiciary has been established as an entirely independent power. In event of dispute concerning the interpretation of the constitution or the constitutionality of the laws voted by the States, the Supreme Court has to decide as last resort.

Though it was not explicitely written in the Constitution it was the legal practice of the Supreme Court, as evolved by Chief Justice Marshall during the 35 years of his tenure of office, which established the *rule of judicial review*. Therefore justice was elevated above the majority rule. Vox justitiae vox Dei, a principle which clearly conforms to the theory of natural law that affirms and emphasizes the overwhelming importance of justice. The judicial review gave the Supreme Court immense power. It made a third political body but the same time it gave to the Constitution its quasi-religious authority. Without sacrificing the great value of constitutional stability, the supremacy of the Judiciary made the Constitution also flexible for its provisions could be interpreted in a flexible way. Owing to development by judicial interpretation, by statute and custom the Constitution of the US. proved to be adaptable to the ever-changing requirements of American life during more than one and a half century.

The natural law doctrine postulated XXVI an adequate limitation of the powers of Government with the purpose of guaranteeing freedom to the States and to the citizens. It is due to the influence of this concept that the strict division of the three powers of government with the concomitant system of checks and balances was introduced.

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It may be that this feature of the Constitution has been copied from what was mistakenly believed to be English precedent and it may be that it brings sometimes complexity, confusion and delay to the performance of governmental functions rather than the checking of tyranny for which it was once designed. On the other hand however it proved to be a reliable guardian of liberty and of the civic and state rights which remained the basic conception of American legal and economic thought.

"The original idea of those who favored the judicial review of legislative acts seems to have been only to preserve the independence of the courts as against the other departments of the government and to protect the inalienable personal and property rights" (Haines, op.cit.page 83). However the justices extended judicial censorship and contended that legislators were limited by superior laws. Without mentioning it, practically the courts used the idea of natural law under the disguise of doctrine which believed in the existence of higher principles which legislators were forbidden to invade.

Among the resulting restrictions on legislations we find implied limits growing out of the nature of the social compact, the fundamental principles of a free republican government or the spirit of a written constitution based on popular sanction. Limits were designed to protect vested rights (e.g. not only just compensation but also public use was required for the exercise of the power of eminent domain; a grant of title to land by the legislature was declared irrevocable upon the principles of natural justice and the passage of retroactive laws was prohibited).

A liberal reaction against the federalist doctrine of limiting legislative activities XXXXMA began in the Jacksonian epoch of pioneer-democracy.

At the time of Jackson's election the government of the US. has become representative of the entire nation. Already in the larger part of the West, the property qualification for voting had been abolished and the West was rapidly drawing the entire

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country toward universal suffrage. For a long time the congressional leaders had kept in their hands the right of choosing presidential candidates in caucus behind closed doors. Now the custom arose of choosing the candidates by a popular convention of the party. The election of Jackson put an end to the "parliamentary" phase of the presidency and began the "plebiscitary" phase. The immense authority of the President, which was not provided for in the Constitution, had one advantage : it created an executive power that was strong and able to act. The natural rights of freedom and equality in political matters came thus much nearer to realization than before. Daniel Webster was right when he said that with America and in America there began, about 1830, a new era in human affairs, that of political equality based upon free representative governments, religious liberty, improved systems of national intercourts, unconquerable spirit of free inquiry and respect for free discussion within forums of local government and of public parliamentry debate.

Alexis de Tocqueville found the country prosperous, free and happy. He attributed the good fortune of the US to the excellence of its laws and the strictness of its morals. The role of flywheel, necessary in every governmental mechanism, was played by family life, by family life, by women, by religion and the severity of public opinion.

In the first term of Jackson's presidency natural right ideas were used by the Southern States which protested the tariff of abomination and based their doctrine of nullification (Calhoun) or the right of secession in Locke's and Rousseau's spirit, upon the assertion that the Union was an agreement entered into by sovereign states, so that each of these states had the right to decide whether an act of Congress was constitutional.

Beginning in the decade of 1850 to 1860 a second conservative reaction, a return to the former national law theories followed in order to check what then seemed to be the reckless expenditure of money for the private advatage of individuals. As a prelude to this movement the abolitionists prior

["58.", "[LC]", "to the Civil Was appealed to natural rights and a higher law as warranting a disregard of laws and constitutional provisions. Abraham Lincoln based his argument against slavery on the dogma of the Declaration that \"all men are created equal\" and deduced therefrom that for one man to enslave another was contrary to the \"sacred right of self-government\". The attack on slavery was generally based on the principle of the \"unalienable rights of all men to equal liberty\" while the pro-slavery men referred to the Greek city-states which acknowledged slavery and even contended that the natural state of men is that of inequality.", "The return to natural right theories resulted first in a tendency to protect vested rights and freedom of contract, but the most important development was the extraordinary extension of the meaning of the \"due process of law\" and ~~X~~ M~~X~~X~~X~~X~~X~~X~~X~~X~~X~~X~~X~~X~~X~~

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the fundamental rights of the individual and against social and economic legislation which was regarded unreasonable of discriminatory.

This was the way in which American theories of natural law were embodied to American law, first rather to protect "the interests of the socially and economically dominant class" while since the later 1930's a change in the Supreme Court's practice occured by which the social interests of the larger masses of population were fostered. Nevertheless underlying considerations remained *rules of reason* i.e. higher or natural law principles.

In the systematic studies of politics and law the natural law concept met with no real criticism and had a place of major importance before 1860. After the Civil War it has been criticized rather severely as shown among others by the works of G.W. Hosmer (1883), Prof.J.W. Burgess (1891), Prof. W.W. Willoughby (1896 and 1913) and opposed by Justices like Holmes and Brandeis. On the other hand other members of the Supreme Court (e.g. Justice Cardozo) upheld the traditions of James Wilson, Paterson, Chase, Marshall, Story, Kent and Cooley and the natural law found also defenders among prominent jurists like F.M. Taylor (1891), M.R. Cohen (1916). Roscoe Pound was right in his statement : "It is not accident that some thing very like a resurrection of natural law is going over the world" (Harvard Law Review XXV. Dec. 1911, 162).

In order to appreciate the reasons, objectives and the significance of this revival, we have to take a glance at the evolution of natural law doctrines in Europe.

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# CHAPTER XVI.

## THE REVIVAL OF NATURAL LAW THEORIES - CONCLUSIONS

In 19th century Europe, we have seen that the legal thought of the 19th century was largely dominated by positivist doctrines that were contrary to the natural law idea. The Roman Catholic Church however, particularly through the Encyclicals of Pope Leo XIII, constantly maintained the doctrine that the source of civil power is not the people but God. The Church condemned laicist liberalism though it recognized the existence of individual rights that have to be protected by the State under the aegis of Christianism. According to the Encyclical "Libertas Praestantissimum" liberty means that by the support of civil laws we are able to live more easily in harmony with the prescriptions of the eternal law.

More recently the Catholic doctrine made a new and important and constructive effort to revive its conception of natural law. This tendency of Catholic authors represents a considerable contribution, but not the only one, to a movement that has been called the "rebirth of natural law". Since the end of the last century many jurists from all sides began to reopen their minds to a moral or ideal philosophy.

The change in legal and moral thought was influenced and motivated by several considerations, namely:

(1) There was a growing feeling that positivist jurisprudence carried to the extreme the attempt to separate ethics and law. Law consists not only of a fixed body of rules applied

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cannot foresee and cannot therefore regulate the details of all
individual cases, and the famous Swiss jurist Burchkardt considers
also eventual ethical errors of the legislator as lacunes in law,
which have to be corrected by the Judge. (Cfr Ernst Zittlemann:
Lücken im Rechte). The judge is not a mechanical tool in apply-
ing the law; He is free in his legal decision; he is even legally
obliged to take a decision also in cases of the above-mentioned
kind and he cannot refuse decision on account of lacunes in the
law. According to modern codes in Continental Europe the judge
has then to pronounce judgment according to the rules which he
would establish if he were to assume the part of a legislator
(Swiss Civil Code Art 1), or in accordance with the law of nature
(Austrian Civil Code), or according to the general principles of
law (Italian Civil Code 1866, Sec. 3.). Whenever judges have to
fill the gaps in enacted law they turn to doctrines of natural
rights or law, and this is also valid for the English and American
common law which is primarily a judge-made law and uses in America
the rule of reason as a measure of the validity of legislative acts.
These factors resulted in a tendency towards a return of the
natural law doctrine before the outbreak of the first great war
in 1914.

Then came the era of the two world wars from which this
tendency received a new and strong impulse. The ruthless oppression
of religion, freedom, and justice by totalitarian governments,
descrimination against races, religions, and classes, the aggressive
character of the last two World Wars with their inhuman atrocities,
clearly proved that law cannot be conceived on simply analytical

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by the official organs of the state - as the positivists thought -
but also of traditional ideas and customs - emphasized by the
historical school - and there is a third element too: "ethical
considerations which, according to Judge Dillon, can not more
be excluded from the administration of justice than any one can
exclude the vital air from his room and life. According to
Judge Dillon, "We need natural law as a device to introduce ethical
concepts into the law."

(2) In certain divisions of the law there are few rules
and judicial decisions based chiefly on standards and degrees.
The application of such phrases as those of "fair conduct" in
the case of fiduciary, "due care" in the law of negligence, "good
faith" and "fair competition" in business transactions, "reason-
able facilities" in furnishing public utility services, "fair
return" on property invested in business and "due process of law"
in depriving an individual of life, liberty, and property, are
well known illustrations of the method of determining rights on
the basis of "standards rather than rules" (Haines, op. cit.,
page 318).

How can the judge define the content of such standards?
He has to be guided by reason, justice and by the weighing of
social values, i.e., by natural law ideas, not in the sense of
immutable principles, but in the sense of a natural law with
changing content (a phrase created by Stammler).

(3) Even the most elaborate legal system is not a perfect
one. There are lacunes in it, vacua juris, as the general rules

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basis as merely the will of the legislator, and made it manifest
that rules of the mentioned kind, even if put into practice by
compulsion, do not correspond to the notion of law as honest
people conceive it. What can serve as a criterion in deciding
whether a rule is law in this nobler, higher sense? Only the
recognition of the existence of higher principles, ideal stand-
ards by which the legislator is bound, towards which he has to
strive, and, should his enactments not live up to these standards,
then they would "savor of lawlessness rather than of law", as
St. Thomas stated. We are listening to a world-wide outcry of
persecuted masses in this world now, who ask for the acknowledge-
ment of their natural rights of freedom, etc.

World War I and II, and the post-war era, demonstrated
then that we need the ideals of the natural law doctrine; we need
higher law theories as a basis for limits on state sovereignty
both in internal and international relations. State omnipotence
and absolutism must be curbed by these higher law principles in
favor of the oppressed citizens, and state-sovereignty has to be
limited in order to build up a world-wide organization of the
nations with a new concept of international law - that is not
rendered inefficient by the obstacles deriving from the narrow
idea of absolute sovereignty of the single countries.

It is easily understandable that the above-explained
considerations and experiences brought about a revival of natural
law ideas, so that after the theological period of its history
(Middle Ages) and its philosophic phase (17th and 18th centuries),
natural law entered a phase which has been called by Le Fur,

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"the scientific period".

In France, it was C. Beudant's work: *Le droit individuel et l'Etat* (1891), to which Charmont attributed the rebirth of natural law or of legal idealism. It then developed by the solidarism of Leon Bourgeois and of Bougle and elaborated by Geny in the four volumes of his "Science et technique en droit privé positif". In the elaboration of the positive law Geny concedes a considerable part to intellect and will as well as to social factors, but he emphasized the role of the "irreducible natural law" based upon reason and intuition. It was chiefly the Catholic authors who manifested a constant fidelity to natural law by using mostly the classical concept of St. Thomas in a somewhat modernized form. Some of them belonged to the clergy (Abbé Leclercq, Georges Renard, R. P. Delos in Lille, and A. Valensin in Lyon) while others were writers on political philosophy like Massis, or laymen occupied in education like Le Fur, who's important contributions (which were all published in 1937 under the title: *Les grands Problèmes du droit*) shaped the natural law into its more developed forms.

There were also notable Protestant protagonists of natural law, especially in the French speaking part of Switzerland, such as the professors F. Guisan and P. Meylan who aim at renewing Barbeyrac's tradition in Lausanne.

M. Hauriou, professor in Toulouse, author of the institution theory, took a rather peculiar position. As a convinced Catholic he regards the natural law from a historical angle of

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view as a classical master-work that was realized in the demo-
cratic and individualist epochs of the Greek-Roman and of the
actual modern world; he finds that its principles are immutable
so that he rejects the concept of evolutive natural law.

Regarding the relations between the State and the indi-
vidual, natural law dominates also the State which is not limiting
itself but is limited by supreme principles that assure to all men
the respect of their primordial liberties. The modern concept of
natural law thus remianed individualistic and followed the principles
of the Declaration fo the Rights of Man.

Nevertheless, the most recent tendencies turned away from
the abstract individualism, the negative aspect of which leads to
the theory of selfishness. It is mitigated by the idea of the
common good. Individualism is replaced by personalism which is
not attached to a rigid equality but aims at a social organisaion
that assures to the human personality the possiblity of a develop-
ment in accordance with his particularities. Personalism took
first of all in the minds of Christian thinkers because they
consider personality both as a human soul and a divine creature.
This idea is shared by Catholics (Maritain and G. de Reynold) as
well as by Protestants like D. de Rougemont.

On the contrary, liberal individualism seems to be exag-
erated by the English professor Laski, who adopted an attitude
of gree criticism versus the State. He estimates public authority
only to the extent to which the State protects the individual's
natural rights. His theory is functional and pragmatic; it

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carries in itself a germ of anarchy.

In Italy, Prof. Del Vecchio's remarkable theory distinguishes
between objective and subjective ethics (moral). They have a
common foundation in the Kantian and metaphysical idea that
man is an end in himself, but they differ as natural law estab-
lishes bilateral values and accords rights and imposes obliga-
tions at the same time so that natural law returns to the notion
of justice. As to the State, it is subject to the legal order
in which the community of a people's life is manifested. It is
the center of the irradiation of law; its mission is the realiza-
tion of justice, of the supreme law that cannot be abolished by
any arbitrary rule, but lives in and illuminates the consciences
of all and commands to everybody the respect of human nature's
sacred dignity.

In the case of flagrant contradiction between positive law
and justice, Del Vecchio, though he admits resistance, asserts
the primacy of the positive law because the "jus conditum" should
not be confused with the "jus condendum".

In Germany the natural law, after having been pushed back
during the 19th century by the pressure of the historical school,
Hegelian doctrines and legal positivism, revived in connection
with the revolution of 1918 as shown by the works of Mayer
(Rechtsphilosophie 1922) and Leonard Nelson, as well as by the
new democratic constitution of the Republic of Weimar, but this
tendency was soon oppressed by the emerging Third Empire.

Stammler's neo-Kantist theory does not belong to the
natural law doctrine but it is still more distant from

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with the tendency of the idealists. In his works (Theorie der Rechtswissenschaft and Die Lehre vom richtigen Rechte), he distinguishes between the concept of law and the idea of law.

The first is the inviolable and sovereign will that ties men to one another independantly from the material and the content of this will.

The idea of law is the fundamental criterion or basic thought (Grundgedanke) which has to direct the content of all law. It comes near to the notion of justice as it is the social ideal of a community of men with free will, whose reciprocal relations are regulated by an equilibrium of two groups of principles which are: respect towards the personality of others, and, cooperation. These are guiding principles; the modes of their realization change with different societies, times, and places.

"The just law is a natural law with changing content."

At the base of Stammler's concept there is a profound esteem for human value that cannot be assimilated to individualism but it leads to a similar atomosphere in spite of its purely objective point of view. Man should not be merely an instrument in the hands of the public power. The idea of man's liberty tempered by the idea of necessary collaboration, renders it possible to control the legislator and the judge by measuring their activity on the criterion of justness (Richtigkeit).

II. From the above rather fragmentary report on some leading adherents of the natural law doctrine (which has to be

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complemented by what we told about a similar evolution in the
English speaking countries), we can deduce some conclusions.

To the law conceived as a rule of conduct prescribed by
the State (legal positivism) or as a rule deriving from social
factors (sociologist positivism), the doctrine of natural law
opposes a law superior to the will of the legislator which has
to afford direction and orientation to the positive law. The
notions of positive and natural law come from two opposite
horizons: positive law results from a social fact of the state
of society; natural law originates in principles of reason
apprehended and affirmed by human spirit. Positive law is, however,
not contrary to natural law; its mission is to put the latter to
work. The notion of law, if observed in its totality, implies
the perfect conformity of positive and natural law.

As to the obligatory force of natural law, there is a
difference of opinions: for some authors it has no other import-
ance than that of a moral precept addressed primarily to the
legislator and it has to influence the norms edicted by him; for
others natural law really constitutes a distinct order or law
which dominates the positive law. It is addressed directly to
the subjects of law and annullates positive law if it is contrary
to its imperatives. The last point of view represents the typical
doctrine of natural law.

In the 17th and 18th centuries the school of natural law
thought it was possible to establish a fixed system of universal
rules embracing all institutions and all branches of human
activites.

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Not representative of the contemporaneous school have only limited ambitions: they reduce the content of natural law to some essential principles, to some rules of justice and reason, leaving the reglementation of the particular applications to the positive law. The leading idea is the value of the human personality from which one deduces the obligations of everyone to respect the other's life, liberty and honor. Upon this principle is based the obligation to repair the damage caused to another person in an unjustified way. The necessities of social life similarly postulate that contracts and other engagements must be kept.

In the State, the governors must accomplish their mission with fidelity and impartiality while the governed have loyally to submit themselves to the just law of their country.

In the family, natural law requires that the parents assure to their children not only subsistance but also a convenient education while the children have to respect and help their parents. It should be noted, however, that there are important exceptions from these natural law doctrines with a limited purpose.

First of all, the Roman Catholic doctrine, as expressed in recent publications and in the Papal Encyclicals (Rerum Novarum 1891, Quadragesimo Anno 1931, etc.) renewed and extended to all phases of activity in society and the State the principles of St. Thomas's philosophy which we explained in Chapter IV. We have no room here to deal with the details of this all-embracing scheme, but the enumeration of the chief subjects of the Encyclical

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Quadrageimo Anno (Reconstruction of the Social Order) will suffice to indicate its nature and importance.

What was already done by civil authority and by the parties concerned in favor of the working class since the Encyclical Rerum Novarum urged reforms that should make good the evils caused by exaggerated liberalism - workman's unions and organizations among other classes (associations of employers) - the authority of the Church in social and economical spheres - the right of property, its individual and social character - the obligations of and titles in acquiring ownership - obligations regarding superfluous income - unjust claims of capital and labor - the principle of just distribution - the uplifting of the prolarariat - wage-earner ownership - a just wage - wage contract - individual and social character of labor - support of the working man and his family - the exigencies of the common good - reconstruction of the social order - harmony between ranks in society - restoration of guiding principles of economics despotic domination has followed from free competition with disastrous consequences - changes in socialism since 1891 - destructive communism and more moferate socialism - the possibility of a middle course in socialism conceives society and social character of men foreign to Christian truth - cultural socialism - moral renovation needed - the remedies - the law of charity must operate - the course to be followed - intimate union and harmony between all good men etc.

In these principles we witness an evolution which expanded the originally limited notion of human rights to new fields, a

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a tendency we are facing in all countries as a consequence of the enormous extension of government activities in the age of transition from a laissez-faire government towards a welfare state.

The notion of human rights comprises now; personal freedoms in the negative sense of the lack of oppression by the state and positive rights not only of a political character (representing the participation of the citizens in forming the will of the state and in controlling its activities) but also of social, cultural and economic nature.

The most comprehensive concept and enumeration of their freedoms and rights can be found in the "Universal Declaration of Human Rights" which was approved by the general assembly of the United Nations on December 10, 1948. The vote was 48 to 0 with the six Soviet Bloc nations, Saudi Arabia and the Union of South Africa abstaining.

The document is not a treaty, not a binding international obligation. It goes extremely far in the establishing of human rights as shown among others by the articles 23 to 29.

It is no wonder that in signing the Declaration the U.S. delegate stated:

"My Government has made it clear in the course of the development of the Declaration that it does not consider that the economic and social and cultural rights stated in the Declaration imply an obligation on governments to assure the enjoyment of these rights by direct governmental action."

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Furthermore, it is understandable that the Chamber of Commerce of the U.S., when publishing the document made the following remark:

"Although Article 29 states that "everyone has duties to the community in which alone the free and full development of his personality is possible", the Declaration as a whole may seem to over-emphasize rights and under-emphasize duties and responsibilities."

"However, it must be viewed not only against the background of America but against that of peoples recently liberated from oppressive occupation or, in some cases, still in fear of totalitarian rule. Such a background, very personal to some of those who worked on the Declaration, was undoubtedly a great influence in shaping the general character of the Universal Declaration of Human Rights".

In spite of these doubts and reservations, the Declaration is an outstandingly important document which, in the words of its Preamble, is intended to - and will surely serve as "a common standard of achievement for all peoples and all nations".

**_And what is the source of all these human rights?_**

**_Natural law_ in the old concept of man's original _free_ and _equal_ state of nature, as shown by Art. 1 and 2:

"All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood".-"Everyone is entitled to all the rights and freedoms set forth in this

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Declaration without distinction of any kind, etc."

The document proves with an irrefutable clearness how
deeply natural law ideas are rooted in the minds of all nations
despite the criticisms which object to this theory.

(1) that which confuses morale and ethics with law and,
that which _exists_ with _that_ which should be,

(2) that by recognizing the primacy of natural law ofe
destroys the validity of the positive law and,

(3) that it lacks precision as its principles (justice,
etc.) are conceived differently according to differences in
peoples, times and places.

Philosophers and jurists may debate on these objections -
men of good will always return to the enternal ideal of natural
law and natural rights.

Jus naturale expellas furca, tamen usque recurret!