Notre Dame Law Review

Volume 24 | Issue 4 Article 2

8-1-1949

Natural Law in the Renaissance PeriodHeinrich A. Rommen

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Recommended CitationHeinrich A. Rommen, Natural Law in the Renaissance Period, 24 Notre Dame L. Rev. 460 (1949).Available at: http://scholarship.law.nd.edu/ndlr/vol24/iss4/2

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RENAISSANCE PERIOD *

I

The Renaissance period is usually associated with theArts and with Literature; it is considered as a new birthof the Greek and Roman classics but also as the discoveryof a new sense of life, as a period in which the autonomousindividual, as the person in a pronounced meaning, escapesfrom the pre-eminence of the clergy and a morality deter-mined by the Church. Nourished by the rediscovered philos-ophy of life of the classics, an emancipation takes place ofthe man of the world, of the man of secular learning, and ofthe artist and the poet, who set themselves up as of theirown right beside, not against, the secular clergy and thelearned monk. In politics this means the dissolution of themedieval union of Church and Empire in favor of the nowfully developed nation-states and city-republics which stresstheir autonomy against the Church as against the Empire.While the Renaissance, thus conceived, was of tremendoussignificance, it is nevertheless true that as such it contributedlittle for the development of the theory of Natural Law. Thereason for this is that the Humanists were admirers of thestoic philosophy and of the great orator, Cicero, the elegantpopularizer of stoic philosophy and of the philosophical ideasof the Roman Law, which, at that time, freed from the Can-on Law, conquered the world again. But for this reason thephilosophers of the Renaissance, in the customary meaning,have little to contribute to our theme, since they are satisfiedwith what they read and reread in their beloved ancients.One could, of course, object that Machiavelli should here bementioned as the great sceptic of the idea of' the NaturalLaw, as the man who first separated Politics and Ethics,

*Originally delivered as an address at the Second Annual Natural Law Institute,College of Law, University of Notre Dame, December 11, 1948.

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who first was concerned with a political science free fromvalue-judgments, inter.ested only in the means, in the tech-niques of gaining and holding an in itself morally indifferentPower in which he saw the only meaning of Politics. Yetthe spirit of the time did not permit him - just as a centurylater, it did not permit Hobbes - to state openly his uttercontempt of the Natural Law.

When we speak of the Natural Law in the Renaissanceperiod, we must look elsewhere. We must turn our atten-tion to another field, much neglected - the great revivalof the philosophy of the Natural Law in the second flower-ing of Scholasticism. This also was a Renaissance, namelyof the aristotelean-thomistic philosophy. As the other Ren-aissance had to overcome the empty subtleties of the Nomi-nalists in their meaningless hairsplitting and their conse-quently crude Latin, so the second flowering of Scholasti-cism had to overcome the same decay of the scholasticmethod and the philosophy of the via moderna. Just as theone went back to the stoics as its great masters, so this otherRenaissance went back to St. Thomas. Yet it had to con-duct its great controversies, at the same time, against theReformers, whose exclusive Supernaturalism led to a distrustin philosophy, in natural reason, and to a hollowing out, asa consequence, of the very substance of the Natural Law.We are, therefore, justified if we restrict ourselves in the fol-lowing discussion to that other Renaissance which alone hascontributed positively to the theory of Natural Law, by sav-ing the idea of Natural Law from the stranglehold of Nomi-nalism and by protecting it against the suffocating Supernat-uralism of the Reformers.

The great line of Natural Law philosophers begins withVittoria, who introduced the Summa Theologica instead ofthe sentences of Peter of Lombard as the basis of teaching- a practice which became general when St. Ignatius or-dained that the professors of his order make the Summa thebasis of their studies and courses, and reaches to St. Robert

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Bellarmine. Though originating in the Iberian Peninsula,and in its world famous universities, such as Salamanca theGreat, and Coimbra the Glorious, attended by students fromall nations, this second flowering of Scholasticism spreadthrough the whole of Christian civilization, as is provedwhen one considers the publication places of the works ofSuarez, Soto, Lessius, Bellarmine, and Molina and their useas texts in the leading universities of France, Italy, and Ger-many. For instance, the De Legibus of Suarez, the Master-work in legal and political theory and in Natural Law, waspublished in Coimbra, Cologne, Lyon, Antwerpen and May-ence.

While a Renaissance is at the same time a revival of agreat earlier period and an overcoming of a desolate periodbefore it, it must be more than a mere repetition to be preg-nant of the future: it must be a new rethinking and broaden-ing, a "vetera novis augere et perficere." Nominalism andits consequence at least in part, the Reformation, constitut-ed the dissolving desolate period in the theory of the NaturalLaw: the development of what was implicit in St. Thomas,and an enrichment of the theory of its application to theproblems of its time was its own everlasting contribution.

IIThe idea of Natural Law finds its full meaning only if

certain fundamental verities are accepted; otherwise a cor.rosive criticism all too easily produces that kind of cynicalrelativism which we know in the philosophy of law as posi-tivism. True, the Natural Law is so "engraved in the heartsof men" that it cannot be wholly wiped out at any time inall the people. Yet that corrosive criticism, first decompos-ing the idea of Natural Law in the minds of the legal pro-fession and the Intellectuals, oozes down slowly into themind of the so-called common man and then produces theloss of common moral principles and indubitable convictionsof what is justice, which finally leads to the assertion that

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the Bill of Rights is a propagandist trick of the Bourgeoisemind to fool the Proletariat. If anywhere, then here, thegood and ever-valid rule "PNincipils obsta" should be fol-lowed. It is on account of this that the verities which arephilosophically fundamental for the idea of Natural Law de-serve our attention.

The following are such fundamental verities. The humanmind recognizes the essence or the nature of things out ofwhich the order of the Universe presented in the EternalLaw arises, so that man recognizes in the natures of createdthings also the order of creation as a whole. Furthermore,the essence of a thing is also its end; the causa formalis be-comes in the process of production or self-realization of athing the causa finalis, the rule for acts which realizes theidea, the nature of a thing. A created thing is the more per-fect the fuller it "realizes" its idea; it has the more good-ness, the more it is a realization of the idea or nature. Fi-nally, the intellect is superior to the will in God as well asin Men. The intellect recognizes the nature of createdthings and the order of the universe, per analogiam and im-perfectly, the Creator and His Eternal Law, by which theorder was created and is preserved. The natures and theirorder, recognized by the intellect as "oughtness," as to berealized by free acts of man, become then the rule of ac-tion for the will. St. Thomas points out frequently this in-terdependence of the ideas of Truth, objective order, and of-Justice. For instance, he points out that the Justice of Godwhich constitutes the order among things in conformity toGod's Wisdom, which is the Law of the Order, may appropri-ately be called Truth (S. Th. I., qu. 21, a. 2). The natures ofthe created things and the order in the Creation are thus inthe last analysis related to God's Intellect and Wisdom. Con-sequently this order, the Lex Aeterna and the Natural Lawwhich, by participation, is the same Lex Aeterna applied tothe free act of rational beings, is necessarily immutable. Thismeans that perjury or the killing of an innocent is always

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and under all circumstances wrong, that they are in them-selves by nature wrong, not exclusively by the positive Willof God or of a human legislator. Even God cannot make byHis omnipotent Will, by positive order, that right what isby contradiction to God's Essence and Wisdom intrinsicallywrong, because this is metaphysically against God's very Es-sence. The Natural Law is, ergo, truly natural, i.e. a dicta-men of Reason recognizing the intrinsic goodness or evil ofcertain free acts, because they agree with or contradict na-ture and the natural order, and it is immutable as participa-tion of the Lex Aeterna, which issues from God's Intellectand Wisdom and rules the Creation.

Occam, the venerabilis inceptor, held that God is primar-ily absolute and omnipotent Will, and that the natures andessences of things are not recognizable by man's intellect,and consequently that the natural order of being, which be-longs to practical reason, advising us what ought to be doneor omitted is not knowable to us. In God, so Occam says,there cannot be any necessity; the decree of God, the LexAeterna and the Lex Naturalis, do not issue necessarily fromthe Essence of Him who promulgated them. For that wouldmake the absolute freedom and the absolute arbitrary omni-potent Will of God dependent on a superior necessity. All pre-cedents of the Eternal and of the Natural Law are only ab-solutely arbitrary decrees of God's omnipotent Will. Thatwhich Occam continues to call natural law is neither NaturalLaw because it is arbitrarily posited by God, nor is it immut-able because God in His arbitrary infinite freedom could with-out any contradiction to His Wisdom and Goodness ordainsomething wholly contradictory to the now posited naturallaw, else God would not be wholly free and omnipotent. Godcould, therefore, without inner contradiction ordain that thecreated will hate Him and that this hatred should be meri-torious (In. Sent. IV, qu. 14 D). Occam denies an intrinsicgoodness or evilness of a human act, such as the love of Godor the hatred of God.

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Occam, thus, in his metaphysics, has torn assunder Godand His Creation, insofar as he teaches that, besides Godbeing the external creative cause, there exists no intrinsic re-lation between God and the World, between God's Essenceand the moral order, the foundation of which is the generalanalogia entis and the God-likeness of man. There is nei-ther in man nor in the Creation a natural, a necessary andfundamental order to God as the origin and as the ultimateend of all being, which in its immutability would become forthe free rational being the ever-valid moral norm of its acts.The absolute unity of Reason and Will in God is denied anda "theological irrationalism" arises. The Natural Law is hol-lowed out in its substance though the term is still used, andin its place steps a moral positivism, the doctrine that weknow what is right and wrong only sola fide.

We have long since given up the idea that the Reforma-tion "errupted" so to speak, out of the Christian conscienceso crudely deceived by the superstitions of Romanism, soruthlessly violated by the arrogance of a power-hungry,morally corrupt Curia. Many of the theological doctrineswhich were espoused by the Reformers are only the ultimateand ruthlessly drawn conclusions from the speculations anddiscussions of the adherents of the via moderna in its twobranches: first Fideism, which means a crippling of naturalTheology and an utter weakening of the Praeambula fidei,because human reason is not to be trusted, from which issuesthe outspoken tendency towards positivism; second, a par-.ticular form of mystical theology centered around the in-dividual person, his religious experiences, his subjective long-ings culminating in the question: How do I find a mercifulGod in the abyss of my essential sinfulness? The Reformersrejected as superstitious, as pagan, the doctrine of the sac-raments and the sacramentals, the hierarchical structure ofthe Church, the Papal authority and that of Tradition, andthe Canon Law. Luther's public burning of the Corpus JurisCanonid set him irrevocably on the road to "Protestantism."

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The Catholic morality was, in their eyes, a despicable Pela-gianism, with rules for a meritorious bargaining with God bydoing external good works, such as giving alms, fasting, in-dulgences, etc. To them the very essence of man under thecurse of original sin became the utter depravation of man'snature. Our nature is wholly depraved, our will unable torealize the good, our reason blind to truth. Nature is notvulnerated or weakened by original sin; it is destroyed.Nothing good remains in us. Of our God-given natural gifts(donum naturale) remain only "deformed ruins." Thus fromthe part of Theology the very foundations of the NaturalLaw are denied, particularly the inner relation between theEternal Law and the Natural Law by reason of the partici-pation and conformity of the Natural Law with the divinerevealed law as the Catholic tradition taught. As a conse-quence arises that significant dualism between the Kingdomof God and the World, of the Spiritual and the Secular, whichErnst Troeltsch has pointed out. Yet it would be foolish todeny that the Reformers explicitly reject the Natural Law;they do that as little as the Occamists did. They followrather the tradition, cite the Natural Law, use the term, andonly slowly, if at all, do they become aware that between theNatural Law and their Theology there exists an irreconcil-able contradiction. This is today a kind of opinio communisof scholars in this field. The Reformers push this idea of theNatural Law more and more into the background, just be-cause of this contradiction between the Natural Law andtheir Theology in the doctrines on the state and law, and usethe Bible and what they conceive the positive Divine Lawin the Bible as the basis of their political, juridical and mor-al doctrine. This is indirectly confirmed by the observationthat the Theology of Crisis and its founder, Karl Barth, whowants to revive, as against the liberal Protestant Theology,the original doctrine of the Reformers, vehemently attackthe idea of Natural Law as one basis of Christian ethics, andinstead recognize only the other basis, the revealed, that

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is, the positive, Divine Law. But if later the faith in theDivine Law fades away by reason of Bible criticism and therise of deistic Rationalism, then the Divine Law as revealedLaw disappears and in Morality and Law remains only rela-tivist positivism. This positivism produces then what LeoXIII called the Modern Law emancipated from the DivineLaw, and deviating from the Christian and the Natural Law(Immortale Dei). Yet he links that with the theory of parti-cipation of all laws, binds human law to the Natural Law, andthis to the Eternal Law, which may never be broken withoutpenalty. Furthermore, only in the personal God the abso-lute unity of His reason and of His will is upheld, and if tfleintellect is superior to the will, can the conformity of theEternal Law and the Natural Law, of the revealed DivineLaw and of the Natural Law be accepted.

III

It was the providential task of the great Masters of thesecond flowering of Scholasticism to reassert these funda-mental verities against the Reformers and Occamism. Theywere able to do so because they went back, as we said al-ready, to St. Thomas, whom they revered as the Doctor An-gelicus, and from whose doctrines they deviated only afterthe most scrupulous research. They show this so salutarycombination of loyalty to St. Thomas and yet they possess apersonal independence which characterizes all the great phil-osophical schools in the history of the human mind. Conse-quently this revival of Scholasticism.is not a mere philologicalone, so to speak; it is not a mere repetition of the tradition,but a re-thinking and a renewal. Not only had the traditionto be sifted and freed of obsolete matter, but new experi-ences and the new spirit of the era had to be assimilated in-sofar as it was possible, without the surrender of such doc-trines as once and for all belong to the Philosophia Perennis.In other words, the task of these Masters was, as the greathistorian of Theology, Petavius, succinctly put it, to evolve

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what had been implicit and to develop fully what the Mas-ters of the Middle Ages had left more in the stage of funda-mental theses. Furthermore, they enriched the doctrine ofNatural Law in two directions: first, by refuting such subtleattacks on its philosophical foundations as were espoused bythe Occamists, and had never been made before; and by thisrefutation Suarez, Soto, Molina and Bellarmine had to en-large the field of inquiry and of explication of all the parts ofthe doctrine which had been scarcely touched before; second-ly, they stood in their time before new problems that criedfor solutions, problems which, again, could not even have beenanticipated in the Middle Ages, such problems as in lus in-ter Gentes, the relations between pagan and Christian States,the Divine Right theory of kings, etc., and in answering suchquestions, they prepared the way for a further developmentof Natural Law as the basis for the natural rights as theyhave found their positive constitutional form in our modemBill of Rights.

Though they kept the proved and honored scholasticmethod, they nevertheless show some distinctive method-ological features which we do not yet find in the MiddleAges. They are, so to speak, nearer to the concrete prob-lems of their era; they are great controversialists, as theworks of Bellarmine and Suarez against the Divine Righttheory and Vittoria's treatises for the Indians so distinctlyshow. In all these controversies they have to base theirarguments, to a great degree, on the Natural Law, as we willsee. They are, moreover, more history-conscious than theMiddle Ages were. This is caused by their stronger regardfor the Individual, the person as a secondary cause, that inthe World, in History, the field of contingent Being produces,by its free decisions, by its free initiative under the Divineand Natural Law, its civilization. That is no wonder, if weimagine what an expansion of experience and learning hadtaken place: the great discovery of the New World, the riseof the nation-states and their national laws as against the Im-

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perium and its Civil Law stemming from the Romans, therise of international trade, the great religious controversiescaused by the Reformation, the danger to the Church uni-versal by the rising national churches, the formation of a newclass, the lay "intelligentsia" so mightily furthered by theRenaissance. All these produce, so to speak, a change in theintellectual climate. The tendency to autonomy, to free-dom from the -guardianship of the theologians in philosophy,politics, literature and in the sciences and in secular culturepermeates this period. This need not mean enmity to theFaith, to the Church-authority. But it means a new relationbetween Church and State, between Community and person,between contemplative and active life in the World. It meansa "weltzugewandte Frommigkeit," not flight from the world,but Christian ethics for this new world of a more autonomouspolitical and cultural consciousness of the contemporaries. Itis significant of the more "personalist" tendency of this erathat the greatest controversy in theology is that of the rela-tion between free Will and Grace, known better as the con-troversy between Thomists and Molinists.

The method of the Masters of the second flowering ofScholasticism, compared to that of the Middle Ages, is moreempirical and, by reason of the great amount of knowledgemeanwhile accumulated, is comparative-analytical, as is ap-propriate to the contingent character of historical reality.In our subject this means a more critical attitude towards ex-isting sociaJ and political forms, an avoidance of the tempta-tion to declare something as "natural" because it has beenaccepted, without being questioned, for a long time. The in-stitution of slavery is thus much more critically studied andfirmly rejected than was ever done in the Middle Ages. Inlegal and political philosophy we find, for instance, that Su-arez is not only concerned with a more accurate statementof the relation between the common good and the privategood of the persons, but also with the limitations of thehuman law. Thus he has already the doctrine against the ex

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posto facto law. Suarez makes one exception - providedthat the act is not a grave and imputable violation of thefirst and generally known principles of the Natural Law(cp. the juridical basis of the Nuernberg Trials in the matterof Crimes against Humanity); in such a case a crime is rec-ognized by all as such even without a positive law declaringit a crime. The same tendency appears in the answer to thequestion, whether the state can command an internal act andpunish for an internal act. The answer is that by its very na-ture the intimate sphere of the person is closed to the posi-tive law which must and can be satisfied with the externalconformity to its law, and not with the internal motivationof this conformity, for the human laws are concerned withthe external peace of the human commufnity. The compara-tive-analytical approach is obvious in every chapter of theworks of these Masters. They cite profusely not only theRoman civil law, but also the laws of France, of Spain, ofVenice, of Florence, etc. When Molina studies the problemsof slavery, he tells us about the inquiries he made about theNegro slave trade with ship owners and with traders, withthe port authorities and with the central authorities; hecites the various pertinent documents in nine columns of hisDe J stitiz et de lure. Vittoria tells us that he observed In-dians and that he objected to the claim that they were bar-barians and by nature slaves of the civilized Spaniard, bypointing out to his opponents that there were many peas-ant-folk in Spain who were not more intelligent or well-bredthan these Indians, and yet nobody denied civil liberty tothese peasant folk.

This historical-analytical and comparative-empirical char-acter of the method of the great Doctors explains why theyoften give up the commentary, which was up to that time theusual form of scholarly work. Instead they write their vol-uminous treatises "On the Laws" or "On Justice and theLaws" in which they treat extensively and with great detailthe subject matter that St. Thomas treats in the nineteen

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quasstiones of the first part of the second volume of the Sum-ma Theologka. The familiarity of the Doctors with the con-temporary literature in civil and canon law, with the philos-ophers and theologians of the medieval era and of the follow-ing centuries is astonishing. On a question which one mightthink St. Thomas had sufficiently or even exhaustively treat-ed, we may find a multitude of new points of view. Thisbroadness does not produce a certain superficiality, as onemight suspect, but on the contrary, almost all scholars whohave studied the works of our Masters from Grotius on as-sert that they are of an amazing profundity and rich in finebut well proved and scholarly distinctions. It is thus easilycomprehended that these works were used even in ProtestantUniversities as textbooks and why they present truly ency-clopedic works for the jurist and political philosopher of ourtime, as is affirmed by such eminent scholars as Hauriou,Mesnard, Barcia Trelles, del Vecchio, etc., and that theyrepresent one of the high-marks in the history of NaturalLaw theory.

IV

Let us now discuss some of the particular themes whichoccupied the minds of the Masters under the heading "Natu-ral Law." One important result of their effort was the abol-ishment of the distinction between a primary Natural Lawas it existed before the Fall of Man and a second NaturalLaw valid after that event. This theory goes back to thestoic philosophy and the Roman Law and was upheld by theMedieval Theologians. The stoics and the Roman Law usedit to find an explanation for some generally accepted socialinstitutions such as war, slavery, private property or the divi-sion of goods, with its implied injustices of the few wealthy,and the many poor institutions, which could not be consid-ered as just in the sense of the ideal Natural Law. The Ro-man jurists ascribed these institutions, e.g. slavery, to theJus Gentium, because according to the Natural Law all men

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are born free. The Jus Gentium is then a kind of secondaryNatural Law, which Reason has instituted and which all na-tions observe. In the Middle Ages the distinction servedpartly for the same purposes; partly to save on the one hand,the immutability of the Natural Law, and on the other handto explain certain sentences in the Scriptures, when God issaid to have ordered something which is against the NaturalLaw. This distinction and the vague ambiguous characterof the Ius Gentium which contains, first, the conclusionsfrom the first principles of the Natural Law, second, thosepositive legal institutions which the jurists found among allor almost all nations at all times, and third, also the princi-pal institutions of the international public law, is either givenup or freed from ambiguity. Suarez, for instance, declaresthat all necessary conclusions from the Natural Law belongto it and not the Ius Gentium. This is, according to Suarez,proprie dictum, a general law of civilized nations ruling suchgeneral legal matters as contracts, forms of properties, the le-gal division of property among men; it is in its character pos-itive law and represents a general theory of such positive le-gal institutions which we find among almost all civilized na-tions because they have been instituted natura instigante.But they are not of the Natural Law and they are not im-mutable either; for they are the product of human conven-tion and of consent. From this Jus Gentium in the sense ofsuch a general law, common to civilized nations, Suarez dis-tinguishes, then, the Jus Gentium in the strict sense as a Iusinter Gentes, as the positive part of the public -internationallaw which rules the relations between nations as subjects-ofrights and duties, as members of the community of nations.The positive law of war and peace, of legations and armis-tices, of international intercourse and trade is meant here, asit was introduced by conventions, treaties and customs.Quite evidently the Natural Law is valid for the relationsamong nations also, and so is the Divine Law. Suarez is nota positivist in the doctrine -of the Law of Nations.

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Suarez has no use for a distinction between the primaryand secondary Natural Law. The fall of man has notchanged the Natural Law as such, but has only added to thepolitical authority the compulsory power which it would nothave needed before the fall. The exegetical difficulties arematters of exegesis, not of the Natural Law. The consequenceof the abandonment of this distinction is that such bothersomeinstitutions as forms of servitude, warfare, forms of govern-ment (Monarchy, as a more natural form of government)are now all strictly institutions of positive human law andtherefore changeable. The right to conduct a just war in or-der to enforce one's rights may become obsolete by the in-troduction of an obligatory procedure of international arbi-tration. Slavery is now an imperfection of the human posi-tive law and cannot any more be espoused as existing by na-ture, as we will show below. We may now understand whya modem scholar (J. Kosters) says that after the labors ofSuarez, after his classification of fundamental concepts, thefruits on the tree of international law were ripe for Grotiusto pluck. The Masters of the second flowering of Scholasti-cism are the actual founders of the modern theory of theInternational Law, as Hugo Grotius himself admits, when hespeaks of the Magistri Hispanorum and the gratitude heowes them for their pioneering work. He follows the Scho-lastics to a great degree and mentions their books on almostevery page of De Jure Belli ac Pace.

V

A very interesting application of the Natural Law in aconcrete situation is the criticism of the colonial method inAmerica by the Masters of the second flowering of Scholas-ticism. The espousers of the rather ruthless conquest of theAmericas by the Conquistadores were first attacked by themissionaries sent to convert the Indians, under the leader-ship of Las Casas. This missionary bishop asked to have Vit-toria as his theological consultant. Vittoria and almost all

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the other Doctors in their special treatises on the Indiansand on the Jus Belli, or in their general treatises "On Lawand Justice," treated broadly and with great care the moraland juridicial issues in this burning problem. They all becamethe defenders of the human dignity of the Indians and ofthe independence of their states. One by one they tear topieces all the arguments of the espousers of that colonial im-perialism and defend against these, the rights of the Indianson the basis of the Natural Law. Sepulveda, a court theolo-gian of the Spanish Monarchs, justified the conquest of theIndian states and the brutal methods of colonization withthese theses: first, the Pope is the Supreme Lord of the World- a thesis, formed in the Middle Ages by the canonists orcurialists in their fight against the claims of the Emperor tothe supremacy of the World, that small world of Christen-dom and its arch-enemies, the Mohammedans-therefore thePope has the right, especially in order to spread the Chris-tian Faith, to grant Christian Kings the political overlord-ship of the newly discovered Americas. The rulers of Spainand Portugal consequently could claim to be the legitimatesovereigns of these territories, their inhabitants and theirchieftains, with the promulgation of Alexander VI's edicts,especially the edict Inter Cetera of 1493. This "Donatio" bythe Pope was, of course, kept in the terms of the FeudalLaw; and it was the kings who applied to the Popes for the"grant" of these territories as "fiefs" according to the Feud-al Law. Nevertheless at that time the Feudal Law was al-ready giving way to modern law of national sovereignty,and the political meaning of the Edict was in the last analy-sis to establish the political sovereignty of the conqueringdiscoverers. Some theologians used the theocratic ideas of aHenry of Segusia for the same purpose; the Pope, represent-ing the Church, has received from God the Lordship of theWorld for the Christianization of the World. By reason ofthis divine authority, the Pope may appoint Christian kingsas legitimate political rulers over pagan nations. Another

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title to the same sovereignty was deduced from the medie-val theory cast also in the formula of Feudal Law, that theEmperor was the supreme lord of the world and that he con-sequently could grant these territories as fiefs of the Chris-tian princes. A third claim was based on the right and dutyof Christian kings to suppress the pagan barbarism, the hab-itual blasphemies and the idolatry of the pagans, so of-fensive to God and His Christendom. Finally it was claimedthat the Christian civilized nations had by Natural Law ac-cording to Aristotle, and with the approval of St. ThomasAquinas, Duns Scotus and many other authorities, the rightto subject the Indians, because they were only "speakinganimals," because they were full of vices and bare of intel-lect and unable to rule themselves. They were, therefore,by nature slaves and could, nay, ought to be subjected, intheir own interests, to the "Regimen despoticum" of Chris-tian rulers. (Lest we judge too hard about these arguments,let us remember that many of these were literally repeatedby the Puritans in New England against the Indians and bythe defenders of Negro slavery in the South.)

One by one the Masters tear these arguments to pieces.The thesis so generally accepted in the Middle Ages, thatthe Pope or the Christian Emperor is the Lord of the Worldby divine institution or by succession to the Roman Emper-or, is rejected and, instead, the so-called Natural Law theoryof the State, as St. Thomas had established it, though with-out drawing all the consequences of his time, is elaborated.The state exists and the rulers rule by force of the NaturalLaw. Man lived in true states before there was a Churchand a Pope. The rights and duties of rulers and ruled, be-cause they follow from the Natural Law, are and remain in-dependent of the State of Grace. Non eripit mortalia, quiregna dat coelestia. In the Scriptures we find not one sen-tence by which it could be proved that Christ conferred anypolitical power on St. Peter or the Apostles; neither didChrist exempt the Christians from the rule of pagan princes.

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Referring to the famous Donatio Constantina, the Mastersassert that this is a spurious document of no value at all. ByDivine Law, the Pope is not Master of the World. Neitheris he that by Natural Law. By Natural Law, on the con-trary, the pagan states of the Indians are fully sovereignstates. If the Pope claims any rights of intervention into theinternal affairs of these sovereign states, this claim must bebased on the Natural Law or on the Law of Nations. Tosend armed forces into the lands of the Indians with the pre-tense that they only served to protect the missionaries is un-lawful and would give these states a cause for a just war.But what if the pagan sovereigns do not admit the missiona-ries or forcefully deport them? Then, say the Masters, thePope may appeal to Christian princes to compel the paganstates to admit the missionaries. Why? Because the paganstates were then violating a recognized rule of the Law ofNations, they were in the wrong. For at that time it washeld that the rule of free travel, intercourse and sojourn inthe territories of the states was part of the Law of Nationsand thus established a right of the missionaries to sojournthere and preach the Gospel. (Yet Las Casas would not evenaccept this argument.) What is interesting here is that thewhole argument is based on the Natural Law and on the Lawof Nations, and that all claims based on the theocratic ideasof the Curialists are simply shoved aside.

The same arguments apply to the thesis that the Emperoris Lord of the World. The partisans of the Imperium Sacrumheld that the Christian Emperor is instituted by Christ asruler over Christendom, or that he gained the rule of theWorld by translation of the Roman Empire or by successioninto the rights of the Old Roman Emperor, as the Jurist Bar-tolus, the famous post-glossator, tried to prove from RomanLaw, coming to the strange conclusion that he who deniesthat the Emperor is Lord of the World, is certainly a heretic.But the Masters argue that such claims are absurd; that theyare not based on any positive law, they are disproved by his-

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tory, which shows that even at the time of the Roman Em-peror there existed independent states and certainly even atthe time of Bartolus, the East-Roman Byzantine Emperorwas sovereign and also the Kings of Spain and France havebeen sovereign kings for centuries. We see that the medie-val theocratic and empirical theories based on the CiUvitaeDei of St. Augustine found no love with the Masters. Inaddition, and thus crowning their arguments, by NaturalLaw the Masters assert that the states of the Indians are asperfect societies truly sovereign. They have their own lawsand constitutions, their courts and administrative offices. Anyattempt of the Emperor to enforce his specious overlordshipwould grant the pagan states a cause for a just war of de-fense.

What of the pagan barbarism, the idolatry, the "unnatu-ral" vices of the Indians as causes for conquest? In thismatter it is again interesting to observe that, if a right of in-tervention is at all acknowledged, this right is based ratheron the Natural Law and on the Law of Nations than on theCanon Law. Some of the Masters make here a distinction be-tween the Natural Moral Law and the Natural Juridical Law.Idolatry, for instance, is a violation of the first, not of thesecond. The temporal state does also not prohibit by its lawall vices and sins, but - rightly - only those which direct-ly intervene in the protected sphere of another person andthose which endanger the proper end of the State, the com-mon good. Similarly there exists no cause for the interven-tion of Christian States or for the Church on the basis ofNatural Law in the cases of idolatry and similar violationsof the moral law. But if the pagan rulers oppress their sub-jects who have been converted and if their emigration is notfeasible on account of their great number or they are force-fully hindered from doing so, or if the pagan priests per-form human sacrifices, then, under due consideration of allcircumstances the Christian Princes would have an indubit-able right to intervene by reason of the defense of Innocents,

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even by warfare. This right of intervention is based on theNatural Law and on the nature of the community of nations,which must demand of its members a minimum standard ofcivilized morality; and it is significant that Molina express-ly states that the Natural Law exclusively and not any pa-pal authorization gives this right of intervention. Yet it isinteresting that this right of intervention for the defense ofInnocents was considered by some missionaries and by thegreat Dominican Theologian Domingo de Soto as infeasible,because it would make the spread of the Faith more difficultor the ensuing war would cause much more suffering, i. e. theuse of the right of intervention would be unjust. In connec-tion with this discussion, the Masters of the second floweringcf Scholasticism have developed also their theory of the justwar which in some directions is an advancement over themedieval doctrine. Since their doctrine is known generally,let us only state that it is based again on the Natural Lawand was the basis of Hugo Grotius's doctrine of the just war.

VI

A most instructive application of the Natural Law maybe found in the criticism by the Masters of the Divine Righttheory. This theory, formulated in Byzantium, and espousedlater by the partisans of the medieval emperors, becameessential for the justification and the definite securing of ab-solute monarchy as against the theretofore unquestioned doc-trine of the Divine Right of the Pope. In accord with thereligious spirit of the era of the Reformation and its theolog-ical irrationalism (inimical to the idea of Natural Law), itseemed that only by a divine call could the rule of the princesbe firmly established. Political authority, whether it werethe monarchy of which Luther spoke, or the aristocracy ofthe virtuous predestined viri egregii, after the example ofthe men described in the Book of Judges, as Calvin taught,by reason of the decomposition of the Natural Law by thereformist theology, had to be based on a divine act of institu-

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tion. Furthermore, the Protestant prince had to become alsothe Summus Episcopus; he had to unite in his hands thesupreme temporal and spiritual authority. The democraticideas of ecclesiastical constitution which were to characterizethe non-conformists were not yet developed.

The Divine Right theory served two ends: first, it gavethe prince an originary power independent of and unlimitedby any covenant with the estates representing the people;second, it established the prince as the sovereign spiritualauthority as against the national Hierarchy and, particularly,the Pope. Dei gratia meant "neither by the people's, nor bythe Pope's, grace." These ideas, in a somewhat attenuatedform, were prevalent in the Catholic monarchies. Neverthe-less, it was also affirmed that the office of the prince is im-mediately instituted by God - like the office of the Pope;although to the Pope, concurrently with ecumenical councils,belongs the supreme doctrinal authority, to the prince be-longs the jurisdictional and administrative authority in theChurch of the Realm. The prince has exclusively the con-stituent power in his realm, and any participation by the es-tates, or by the people, is thinkable only by an arbitrarily re-vocable grant of the prince. This implies that there is noroom for an active or a passive right to resistance based onNatural Law. Only meek obedience is the duty of the citi-zens, at least as long as the prince does not openly act againstthe Scriptures - that is, as long as he does not become a"heretic." Against the heretical prince the orthodox must,of course, rise in arms. (In connection with this it is inter-esting to compare the Thomistic doctrine that the theologi-cal heresy of the prince as such does not destroy the mutualrights and duties of authority and citizens based on NaturalLaw, at least as long as the concrete political common goodis not directly affected by the heresy of the prince.) If theNatural Law is to be considered of any value, then the princeis to be considered the sole and sovereign interpreter of itbecause his authority is of directly divine institution. As

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Hobbes expressed it: a law of the prince may be iniquitous,but "it is not unjust," because the Natural Law, in Hobbes'view, is actually wholely immersed in the positive law of theLeviathan, and, therefore, it becomes a meaningless term.Among the consequences of this were the nefarious principleof "Cujus ,egio, ejus religio," the theoretical impossibility ofany form of civil tolerance; the identification of political andecclesiastical religious loyalty, which issued in the ruthlessoppression of religious non-conformists because politicallythey committed treason by their religious heterodoxy.

Against this Divine Right theory arose the great Doctorsof the sixteenth and seventeenth centuries to develop morefully the Thomistic Natural Law theory of the State and ofpolitical authority. The State, they taught, is an institutionof the Natural Law. Man is by nature a political being. TheState as the natural "perfect society" is in its institution andjurisdiction independent of Grace and Supernature. Furth-ermore, though founded in human nature and thereforenecessary for its most perfect realization, the concrete Statecomes into existence not without the intervention of free hu-man acts. That is, the concrete State is to be thought tocome into existence by a consent, by a covenant, by a socialcontract of the "family-fathers" who instigante natura seethe necessity to form a more perfect union. The juridicalfigure of a pact, a true status contract, will signify not somuch that an historically documented solemn covenant hasbeen formally concluded, but that free human acts have pro-duced the State, not a divine interventive act. Furthermore,with the initial formation of the however-rudimentary bodypolitic, political authority, ultimately deriving from God asthe Creator of human political nature, rests immediatelywith the body politic, which is, therefore, an immediate de-mocracy. Any other form of government, such as represen-tative democracy or monarchy, must consequently be con-sidered as produced by a distinct act of the body politic; i. e.,of the people in the political sense - by an act of transfer

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of political authority. There is no intrinsic reason why thisor that person should have by nature a right to political au-thority since all the partners in the original covenant are freeand equal. This does not invalidate the duty of the coven-antors to give up the immediate democracy and to institutea different form of government, a monarchy, for instance, byconsent in the interest of the more perfect and more efficientrealization of the common good.

But it is clear that all forms of government are derivedfrom an original constituent power of the people. Eventhough it is indisputable that political authority is ultimatelyderived from God, immediately it is derived from the people.Consequently, all political forms of government - and ab-solute monarchy, too - are merely creatures of positive,man-made law: not of the Natural Law - and even less ofpositive, divine law, as the Divine Right theory taught. Dem-onstration of the validity of the Divine Right theory wouldrequire a revealed act of God, of which there is no historicalrecord. Even the rule of Saul and David, so often cited asexamples by the Divine Right theorists, is not acceptable toSt. Robert Bellarmine as being instituted directly by God.

Since all constitutions, all forms of government, are ofpositive man-made law only, they are all "limited" by theNatural Law. Every consensual act of transfer of politicalauthority to a person or to a group of persons contains as anunconditional clause: salvo jure naturale - and, consequent-ly, salvis jeibus naturalibus. The legitimacy of politicalpower rests, in the last analysis, upon its service to the com-mon good, because the right to the realization of the commongood is also an inalienable right of the people. From this itfollows that the people have by Natural Law the right to ac-tive and passive resistance, first, against the usurpator, and,second, against the tyrannus secundum egimen; i. e., theinitially legitimate ruler who gravely violates the commongood.

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The twin concepts of the limitation of political authorityand the right of the people to resist tyranny form, by theway, the content of medieval constitutionalism, which rest-ed on three principles: first, the Law is supreme, rather thanthe king or the estates of the realm separately acting - thisis the theory of the supremacy of the Law, Legem servarehoc est regnare ... ; second, the principle that the Law issuesfrom a kind of co-operation between the royal authority andthe estates, the former having the right of legislative initi-ative and the latter, by their consent, limiting the initiativeof the king through the public sense of justice that animatesthe people; third, the principle that the people or the estateshave a right to resist an act of the king violating the Law asa "pactum," a "covenant," a "constitutio," contracted by theking and the people and binding, therefore, each of themequally. If the king acted against the pactum, then the le-gitimacy of the act (and even of the authority of the king)was destroyed. This pattern of thinking was especially validif the act of the king was against the Natural Law. Thatmeant also that the king could not infringe upon the solemnlyestablished and agreed upon Liberties and Immunities of theestates, the cities and the towns, the guilds, and other com-munities from which were then derived the rights of the in-dividual according to the community spirit of the MiddleAges.

Thus it is significant that against the theory of the Rexlegibus solutus, against the Divine Right theory, which madeof the king a "Pro-Deus" (Bacon), a "Deus mortalis"(Hobbes), and made consequently an appeal against an actof the king impossible, since there is no appeal against a di-vinely instituted authority, the Masters established, besidesthe existing positive constitutional law, the Natural Law asthe basis of an appeal against the tyrannical ruler. Seditio,i. e., unlawful rebellion against legitimate (in the formal andin the material sense) government was clearly distinguishedfrom the right to active as well as passive resistance, that is,

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lawful revolution. The similarity of the arguments of theMasters of the second flowering of Scholasticism to the argu-ments of the Declaration of Independence is so evident thatit need not be elaborated on.

VII

Still another characteristic feature of the development ofNatural Law doctrine during the second flowering of Schorlasticism - and this in a certain consonance with the spiritof the Christian Renaissance and with eighteenth-centurytheories of human rights - is the elaboration of the conceptsof the Jura Naturalia, especially those of liberty and proper-ty. What was contained implicitly in the thought of St.Thomas was made explicit in the writings of this period. It istrue that such a nominalist as Occam in his day stressed thefact that the Jura Naturalia were subjective rights existingin consequence of the objective norm. The term Jus for St.Thomas, meant primarily the objective Justum, the Law,and very seldom did he mean by it the subjective right as itwas known to the Roman Law. But for Occam Jus becomes"Potentas licita actum aliquem exercendi"; and, significant-ly, Occam singles out -Liberty as such a Potestas, natural toman as a person. This natural right of Liberty may not betaken away from man without "guilt" or reasonable causeagainst his will, though man may voluntarily give up his Lib-erty. Occam, thus, has quite clearly the idea of NaturalRights; and this is easily understood if we are aware that themost positive among the many negative features of Nomin-alism was its interest in the individual generally and in thehuman personal will as a creative cause of human politicaland cultural life.

The theory of the Natural Rights of the person and of theState finds its full "explication" in the century from Vittoriato Bellarmine. Vittoria points out - in his defense of theIndians against the theses of Sepulveda, who espoused arather ruthless colonial imperialism, that the Indians, as per-

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sons and as citizens of independent states, are not by natureslaves or subjects of civilized Christian nations. WhenSepulveda cites the famous Aristotelean thesis that some areby nature slaves, Vittoria tries to excuse Aristotle by point-ing out that Aristotle only means that those who by virtueof high intellectual gifts are capable of ruling themselves areshown thereby to be capable of ruling those of "brawnybodies." But Aristotle does not mean, according to Vittoria,that what Jefferson was later to call "the natural aristocracy"has a natural right to rule as masters those of weaker mindsand lower civilization, who by nature are destined to slavery.Slavery was not conceived by Vittoria as an institution al-lowed by Natural Law, not even of a secondary Natural Law(as taught by the Stoics and the Medieval Scholastics, whoheld that slavery was immoral in the status naturae purae-that is according to primary Natural Law - but excusableas a consequence of sin - according to the secondary Natur-al Law). For Vittoria slavery as a hereditary status of serv-itude is exclusively Jure Humano; it is not even an institu-tion of the Jus Gentium - that somewhat vague medium be-tween the Jus Naturale and the Jus Civile. When Vittoriadiscusses monarchy, which he prefers- to other forms of gov-ernment in accordance with the scholastic tradition (thoughwe should be quite clear that monarchy does not mean to himthe hereditary absolute monarchy of the seventeenth cen-tury), he stresses that Liberty is as well, nay, better, pro-tected under monarchy, the clearly circumscribed and stablerule of one, than under the rule of the few or the many. Thisidea of Liberty as a right to be best protected under mon-archy is new. Before Vittoria, the argument for monarchywas taken from the idea of the objective order requiring anobjective authority of one will to protect its own stability;with Vittoria, the argument for monarchy flows from his con-cept that under monarchy the Liberty of the subject is bestprotected.

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From Vittoria on, the theory of Liberty as a natural rightof persons and of the State is developed further concomitant-ly with the argument against servitude. The distinction be-tween the primary Natural Law and the secondary is aban-doned: the Fall of Man is no longer considered to have anyinfluence upon the core of Natural Law. The Jus Gentiumbecomes, on the one hand, a positive general Law of civilizednations, an "ailgemeines Kulturrecht"; and, on the otherhand, it becomes a Jus inter Gentes, the positive part of theLaw of Nations. If, thus, Liberty is a right based on theNatural Law, then all forms of servitude are products ofmerely human law with its imperfections. Aristotle's argu-ment about slavery as an hereditary status of servitude is. de-clared unacceptable and absurd. Suarez, for instance, stressesthat personal 'Liberty belongs positively to Natural Law,that it is a natural v'ight, because man as a rational, free beinghas a natural dominium over his Liberty. Liberty can be lostonly by free and voluntary surrender or "ex justa causa";i. e., as a punishment for crimes (and it is significant thatSuarez continues - just as the State may take away the lifeof a criminal according to just criminal law). As the life ofan innocent man is sacred, so also is his Liberty. For likelife, so is Liberty given to each man by the Creator Himself;and by nature all are free and equal. These ideas are ap-plied also to the State as a persona moralis. The State is bynature a Free State, with the right of self-determination. Theconstituent members establish by the social pact, primaevainstitutione, an immediate democracy: this original democ-racy ought ordinarily transform itself, by constitutional posi-tive act, into a monarchy, absolute or limited; into an aristoc-racy; or into an indirect representative democracy. Allforms of government are, consequently, of positive historicallaw. There is no Divine Right of Kings; or of DemocraticMajorities.

Similarly, States have a natural right to Liberty and inde-pendence from one another under Natural and International

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Law. Therefore, the great Doctors of this period reject allthe arguments of the defenders of colonial imperialism withthe counter-argument that the pagan States of the Indiansare by Natural Law free and independent, and that all claimsof the Spanish must be based only on the International Lawof the community of nations.

It is significant that property and the natural right toproperty are treated similarly to Liberty. True, the Mastersof that time did not need to treat these problems as widelyand profoundly as they required to be treated in the nine-teenth century under the impact of Marxist Socialism. Yetthe question arose in connection, again, with the rights of theIndians. These have, so the Doctors said, a true dominiumof their properties, real and movable; to take away theirproperties would be a violation of Natural Law. Suarez alsocriticized the doctrine of some jurists who asserted that thetemporal king could, by reason of his absolute power, arbi-trarily transfer the property of one man to another, or con-fiscate it. This, declared Suarez, is "absurdissima" and alsoagainst the natural right that everybody has to his legitimateproperty. Suarez and others also taught that the division ofgoods (i. e., private property as a legal institution) is nota consequence of sin, but is convenient to nature and mighthave been introduced even in the status naturae purae.Under the influence of natural reason, private property wasintroduced among all civilized nations, and everyone has nowthe natural right to his property as he has the right to thefruits of his labor.

An interesting sidelight on this positive evaluation of Lib-erty is afforded by a short discussion of the ideas on economicliberty and monopoly held by these Masters of the Scholas-ticism's second flowering. The main problem has alwaysbeen: under what conditions will the prices of goods andservices be just? Under what conditions will they be whatthey should be, according to Natural Law? Will prices havethe best chance to be justly established under conditions of a

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free market and under the rules of ordered free competition?Or is it necessary that the government regulate the prices andexchanges in order to assure just prices? And how far aremonopolies, private and public, permissable, which by theirown economic power can control prices?

Among the many theologians who have treated of theseproblems from the points of view of ethics and the NaturalLaw, Molina stands out particularly. In his remarkablebook, De Justitia et de Jure, he demands, first, that economicexchanges must follow the rules of commutative justice -

the equality of value and price; and, secondly, that the justprice is not influenced by the economic status of persons asexchangers, but is determined absolutely through such factorsas costs, supply and demand, which altogether represent the"natural price" under due consideration of the changes in the"value" of money. Molina held that the natural (i. e., thejust) price has the greatest chance to be the actual marketprice under conditions of a free exchange market and stabil-ity of money. Regulated prices have much less chance tobe just prices, because Government regulation cannot meetthe frequent changes that take place among the determiningfactors of the natural price. He condemns private monopoliesas usurpations and enslavements of the free market in contra-diction to the Natural Law. He accepts regulation of pricesonly in emergency situations and rejects them as ordinarymeans of directing economic life by the State. State monop-olies are accepted on the condition that they serve the com-mon good, because they may be considered as a source of pub-lic revenue; but they must never serve private interests inthe form of privileges. If the Kin'g therefore grants, for reas-ons of the common good, certain merchants' associations orcraftsmen's guilds, e. g. printers, monopoly privileges, thenthe prices must be regulated in harmony with the NaturalLaw principle of the just price. Molina's views thus show,in accordance with the general tendency, a highly positiveevaluation of Liberty in the economic exchanges in a free

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market, as a natural condition for the realization of the justprice. This positive attitude toward ordered Liberty in eco-nomic life is further accentuated by his strong criticism ofunfair monopolistic practices and by his diffidence towardGovernment controlled markets and prices.

VIII

After this survey, which by its very nature is sketchy andcannot be considered at all comprehensive, it is easy to un-derstand why so eminent a jurist and scholar as Joseph Koh-ler, professor at .the University in Berlin, who, recognizingthe insufficiency of legal positivism, consequently had delvedinto the Natural Law Tradition, could write in 1916 that arevival of Natural Law must return to the thought of theMasters of the second flowering of Scholasticism, and not toHugo Grotius and the Rationalists. It is the tragedy of therationalist Natural Law as it developed on the Europeancontinent that it ultimately served only as political ideologyand propaganda able to attack the Ancien Rgime and toproduce the Revolution and the Declaration des Droits del'Homme et du Citoyen and then be drowned in the Terror-Regime of the Jacobines, or to be 'forgotten by rising nation-alism and the general positivism which got control of the uni-versities and of the courts. The Common Law countries havebeen luckier, at least to a degree. In its tradition and underthe influence of the clerics of the Chancery, the idea of a Nat-ural Law was better preserved than on the European conti-nent. This tradition was protected by the judges who mostlyfelt that they were intrusted with the Law and the admin-istration of justice; they held in the majority that Law isreason, right reason; that is, positive law must be in agree-ment with the Natural Law and with natural Justice andEquity. Though there are not absent dark pages in the his-tory of the Common Law, it remains true that all through thecenturies, the tradition of Natural Law never was fully aban-doned in the history of the Common Law. It was the judges

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who, animated by the Natural Law, took on the guardianshipof the Law as a Rule of Reason and for reasonable free citi-zens, against absolutist kings and the thread of tyrannicalmajorities in the legislatures. Jurists and judges who arephilosophically mere pragmatists and positivists cannot bethe guardians of the Natural Rights because they have aban-doned the sources from which these rights and their dignityare simultaneously derived; the Natural Law.

Heimich A. Rommen