American Democracy and Natural Law 9780231877770

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American Democracy and Natural Law

AMERICAN DEMOCRACY AND NATURAL LAW Cornelia Geer LeBoutillier

COLUMBIA U N I V E R S I T Y PRESS New York 1950

COPYRIGHT 1 9 5 0 COLUMBIA UNIVERSITY PRESS, NEW YORK

Published in Great Britain, Canada, and India by Geoffrey Cumberlege, Oxford University Press, London, Toronto, and Bombay MANUFACTURED IN THE UNITED STATES OF AMERICA

Foreword

I

T IS MY PURPOSE in this book to examine into the living roots which underlie healthy political and legal institutions, especially in this country. I also propose to review the values toward which, under responsible governments, such institutions have been directed. There is an ancient doctrine positing a "natural law," apparently a metaphysical principle that regards "the essential nature of man" as sufficient source and criterion of human rights and of justice. But natural law doctrines raise definite doubts and questionings. Do the root values of sound political and legal arrangements draw their vitality from an unexaminable abstraction, man's essential nature; or do they not, rather, draw their vitality from man's growth potentials, examinable in the light of history? Are the highest end values of government and jurisprudence hidden in a cloudy concept called the essence of man; or are they not, rather, quite openly some such thing as prosperity or utility or the good life? This matter is probed in my book. Such an enterprise seems imperative because during the course of history much has been said both for and against the natural law tradition. At the present time, to a certain extent it is being revived. Perhaps to analyze it is to revive it further. However that may be, let it be called up and examined.

vi

Foreword

Now is the time in world history for nations whose democracy has its practical origin and power in the people's will to scrutinize themselves and declare what are the ultimate sources and grounds of their democracy. It is no easier than it has ever been to put an essence under the searchlight of historical inspection. I seek a more empirical foundation for human rights. Because I believe knowledge of that foundation has important implications for the American way of life and for American ways of thought, I have addressed myself to this task. Cornelia Geer Le New York November i, 1949

Boutillier

Contents I. II.

CITIZEN AND S T A T E N A T U R A L LAW

3 56

III.

N A T U R A L LAW IN AMERICA

109

IV.

T H E PATTERN

154

NOTES

185

WORKS CITED

195

INDEX

201

American Democracy and Natural Law

I. Citizen and State

P

LATO found a close correlation between types of men and the types of government they erect and submit to. Aristotle stated that the aim or object of politics was the good for man. He called politics "the master art," the dominant preoccupation and activity of men. The best form of government was the one which promoted the greatest opportunity for development and growth, he said. Whether or not one agrees with so close a correlation, one must see between government and man's good some relation of covariation. Indeed, from the earliest known examination into the nature of the state, the inquiry into the nature of good, which is called ethics, has been political philosophy's inseparable concomitant. In Plato's Republic the two are so closely identified that scholars lock horns over the question as to which, at any special point, or throughout the book, Plato is discussing: the well-functioning individual or the well-functioning state. It is not easy to tell whether the individual man is being taken to illustrate the state, or the state to illustrate the individual. Ethics, defined as the inquiry into the nature of the good for man, has led thinkers in the main down two very different paths. At the end of each of them, to the followers of that way of thought, the good seems to beckon. For one kind of thinker, indeed, the good, in its ideal

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Citizen and State

form, is already there at the end of the mind's quest, shimmering in absolute perfect beauty. It is "there" in the sense that it is there for mind. It never is "there," never exists, otherwise than as ideal. For the good is too good ever to be realized, too remote ever to be achieved, too beautiful, even, for definition, too perfect for man's complete knowing because man's knowing is corrupted by sense. Nonetheless, though it does transcend all human knowing, yet, these thinkers contend, the good lays a mandate upon the human mind. Seek me through reason alone, it says. Since it is purely intellectual and ideal, reason can know it, though never fully. This type of ethics is often called ethical idealism or absolutism; here it will be called absolute ethics, in contradistinction to empirical ethics, now to be introduced. The second kind of thinker sees the good as earth-bound, not absolute. He sees it not as fixed in some heavenly realm as ideal, or Platonic Idea, but as having its roots and its fruits, alike, in human experience. This ethics will be called in this book empirical ethics. It may be said to consist of two types of ethical theory. The first of these types of ethical theory is the theory of self-realization. The second of these types comprises the hedonist-utilitarian and pragmatic theories. They draw together in general outline as a single frame of reference, because of their practical, earth-bound criteria, sanctions, and context. In more detailed consideration of absolute ethics, two quotations will serve to place it for us in the history of thought. And let it not be assumed that because the quoted authorities are "old-timers," they can be waived as "old

Citizen and State

5

hat" or laughed off as dated. This way of thought—alas that it is so! say some of us—is still very much alive. He who has been instructed . . . when he comes to the end, will suddenly perceive a nature of wondrous beauty,—and this, in the first place, is everlasting—not growing and decaying, or waxing and waning; in the next place, not fair in one point of view and foul in another, or at one time or in one relation or at one place fair, at another time or in another relation or at another place foul, as if fair to some and foul to others . . . but beauty only, absolute, separate, simple, and everlasting, without diminudon and without increase.1 Plato here in the Symposium points to an ultimate, transcendent Good, the Platonic form or absolute. To behold virtue in her proper form [Kant says, with meaning similar to Plato's] is nothing else but to contemplate morality stripped of all admixture of sensible things and of every spurious ornament of reward or self-love. How much she then eclipses everything else that appears charming to the affections, everyone may readily perceive with the least exertion of his reason, if it be not wholly spoiled for abstraction.2 Absolute ethics, it is easy to see, cannot admit any relativism into the concept of good. Point of view, time, place, relation, culture, all these are held meaningless when the matter at issue is the Good. The Good is absolute. Furthermore, as has been said, the Good is beyond ordinary human knowing, because human knowing is largely sensory, originating in sense, or tainted with sense, the unreliable reporter. The Good may be apprehended by intuition or by reason, although not perfectly; it needs no empirical analysis or checks to be known thus. It is, in a powerful sense. It draws the mind of man. The nature of infinity has drawn

6

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the mind of the mathematician through centuries, and always will, though it can never be known clearly, as the object o£ sense is known. So the Good will always, the ethical absolutist contends, draw man to seek it and find it and realize it in his life, however imperfectly. Though not subject to tests or to demonstration, knowledge of such absolutes as the good, it is held, is actually surer than knowledge which can be tested and proved. These absolutes are in a different realm of being, are known on a different level of the knowing process than those things which seem, in one way of regarding them, to be so much more readily apprehended by the mind. Such absolutes are "immediately" known, the contention is, "in a flash." They exist to be known, invariable, everlasting, not "growing and decaying, or waxing and waning" as the very much closer objects of sense and experience do. This is what Aristotle meant when he said: " 'Prior' and 'better known' are ambiguous terms, for there is a difference between what is prior and better known in the order of being and what is prior and better known to man." 8 The objects of sense are prior and better known to man. But the great absolutes, it is asserted—the True, the Good, the Beautiful, for instance —exist in the very warp and woof of nature. There, to an order of being profoundly aware, in a sense, of its own internal relations, they are prior and infinitely better known than the shifting pageant of sense objects. For the ethical absolutist the good is good in and for itself. Its value is intrinsic, not mediate. We think of health in one sense, as being good for man because it enables him to enter into life more fully, to enjoy himself, to succeed,

Citizen and State

7

to be attractive to others. For the ethical absolutist the Good is not like that. It is Good in an ultimate sense. Of course, even the opposed thinker (for example, Aristotle), who holds that every good is good for the sake of something else, must come at last to the Chief Good: for the sake of this Chief Good, finally, all other things are good that are good. But for Aristotle this Chief Good was not, as it was for Plato, "absolute, separate, simple, and everlasting," but was a thing as relative, as intricate, as complex, as changing, as happiness. Aristotle's definition of happiness as the Chief Good did not hold it up as the great desideratum except in this light. T h e absolute concept of the Good makes no acknowledgment to any "if's, and's, or but's." T h e Good is said to exert upon our minds the categorical imperative, distinguished by Kant from all hypothetical imperatives which do or might begin with "if." "If we want the trust of other nations, we must never be guilty of international chicanery." T h i s is a hypothetical imperative. T h e categorical imperative would command virtue for its own sake, for its intrinsic value, and would not dignify by the name virtue a policy stimulated by self-interest. T h e categorical imperative would not command international honor for any hope of gain, even spiritual gain. It would not in the least be swayed by whether or not our associates among nations would deal so with us. Anything less than pure, disinterested virtue for virtue's sake, in Kant's words, "substitutes for morality a bastard patched up from limbs of various derivation, which looks like anything one chooses to see in it; only not like virtue to one who has once beheld her in her true form." *

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Citizen a n d State

T h e type of ethical thought we have called empirical ethics, as we now come to give to it, as well as to absolute ethics, more detailed attention, finds the Good closer home. Broadly classified, empirical ethics comprises several kinds of ethical theory: (1) the theory which holds that the Good for each human organism consists in this, fully to realize all its potentialities; (2) the theory which relates the good to pleasure, or to happiness, or to utility whether individual or general; (3) pragmatism, a radically empirical theory and method which seeks the good in practical workings. These types of ethical theory, as subdivisions of empirical ethics, will be discussed separately and briefly. T h e y all accord definite status to expedience if carefully evaluated, holding, therefore, with mediated values—for values, that is, which come to their fullest fruition in something other than themselves. T h e theory of self-realization, against a norm of growth, contends that within each living thing there is a drive, or will-to-be: the ethical quest would be the furthering, as far as possible, of this inner effort of man. For this type of ethical thought, the good is fulfillment—complex, mediated, relative. So Aristotle held that the Chief Good for man, in terms of which other values were judged good or bad, was complete functioning according to man's rational nature, the fulfillment of promise or potentiality, in effect, growth. T h i s is virtue. By Aristotle it was identified in this sense with happiness. T h e ethical goal, or object of the wider, conscious ethical quest, would be so to arrange external factors that growth is fostered. As Aristotle said: " W h e n all the influences by which we are thought to be-

Citizen and State

9

come good are present, we get some tincture of virtue." 5 T h e good is inherently within each individual, pressing to be actualized. Even as potentiality it can be experienced and understood. As actualized, it can be fully experienced. Thus it is an empirical goal. Man may further it by creating an environment in which this urge of potentialities towards actualization is freed and fostered. It is this inevitable concern with environmental factors which frees this ethic from the taint of unrelieved selfishness. This is its altruism: to develop a good society within which all human beings may be brought along as far and as fully as in them lies; for in the development of all the development of each is not only made possible, but may be carried to its ultimate. Society is the matrix within which individuals may be brought to their most complete flowering, to the most perfect exfoliation of what is within them: a good society is the society which can best accomplish this. " A proper regard, indeed, to one's own profit teaches us to unite in friendship with men. . . . Whatever conduces to the universal fellowship of men, that is to say, whatever causes men to live in harmony with one another, is profitable." 6 This, Spinoza said, is the foundation of a state; for there is nothing so good for a good man as a good society— as other good men. Altruism and selfishness are one and the same thing in this philosophy. " T h e more each person strives and is able to seek his own profit, the more virtue does he possess. . . . Virtue is human power itself." 7 T o repeat, the ethical theory of self-realization, which has been treated as a form of empirical ethics, holds that the good is within, known by its external expressions. There is

IO

Citizen and State

no greater good for an acorn than to be a good acorn, the kind of acorn that will develop into a good oak tree—"good" in all that is properly characteristic of an oak tree, good in height and breadth and leafage, in smoothness of bark, in greenness of leaves. An acorn "wants" and "strives" to be such an acorn, working against adverse circumstances. The oak tree works against circumstances which might block or impede its inner "purpose" to be the best oak tree it has the potentiality to be. There is no greater good for a man than to be a good man in this sense. He will be excellent in those functions of physical life which keep him going and which keep his stock going, ingestion, digestion, reproduction, and all human striving that promotes the social good. He will be excellent in all that makes him an excellent member of the mobile tribe to which he belongs, long and strong and active and aggressive and gregarious and shrewd. He will be excellent in the rationality which is man's unique possession, which at the immediate cost of his gvegariousness to some degree, perhaps, can lead him into creativity and human tenderness and peacc. This "inner purpose," which works spontaneously, but not always unconsciously, in every living creature, Aristotle called that creature's "entelechy," from the Greek word telos, or "goal." Spinoza called it that creature's conatus, the Latin word for "effort." T h e good for man is within him, pressing for release and realization. T h e good is growth in a social context: continuous growth. The second form of empirical ethics finds the good in utility, as the concept of utility has evolved out of the hedonistic concept of pleasure, through happiness and the Greatest Happiness Principle of Jeremy Bentham. Utilitarianism

Citizen and State

il

sees the good in that which will afford the greatest happiness to the greatest number of people, which will be most useful to society as a whole. While less immediate as a criterion than the criterion of pleasure from which it derived, utility as the good comes close home. It is more open and aboveboard, more knowable, than the good for the ethics of selfrealization, and certainly more knowable than the good for any kind of absolute ethics. The point of knowability, however, is the rock on which its enemies have tried to split this theory. How can we know, they ask, what will be most useful to mankind? Some say Communism; some say National Socialism or some variety of all-powerful or very powerful state; some say democracy. Some say that religion alone can lift mankind out of the quagmire in which he wallows; others say that religion is the opiate of the people. How can we know the answer to any such question? John Stuart Mill has named, analyzed, and expounded utilitarianism in the book of that title. He admits that the criterion of utility is elusive and hard to know. Still, he holds it is less elusive and more readily known than an absolute, abstract criterion like virtue, or the Good, as cited in its pure form by absolute ethics.8 Indeed, utilitarianism does speak with audacity. How can man discover what will, unto the third and fourth generation, bring into being the greatest quantitative and qualitative happiness? How can man figure out the greatest good for the greatest number? These are big words. By what method shall we seek to know these things? It is this question which draws utilitarianism and pragmatism together. William James said that the good, for

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Citizen and State

man, was what worked. Utopia might be thought of as a very great good. But Utopia had never worked. It were better, rather than shooting at Utopia, for man to shoot at something more likely to fall into the pot and start cooking. T h e only way man can plan and move and keep his confidence is by slow, small, readily tested degrees. James would see man on the way, inch by inch, if inches worked, towards amelioration in a social context, with enough faith in this method to believe that he was on the way towards utility, or greatest happiness. They are closely related, these two, utilitarianism and pragmatism. As the good for selfrealization is closer home than the good for any form of absolute ethics, so the good for utilitarianism is closer home than the good for self-realization, and the good for pragmatism is closer home than the good for utilitarianism. These three forms of empirical ethics, the theory of selfrealization, utilitarianism, and pragmatism, have much in common. But the last two, utilitarianism and pragmatism, are even more markedly similar, more clearly and inevitably supplementary. Utilitarianism has been criticized because it does not supply a method. Of pragmatism William James says: " I t does not stand for any special results. It is a method only." T h e two attitudes of mind are similar. Both are of the earth earthy, yet both are melioristic. Both are profoundly empirical. Neither one is afraid of fluidity or pluralism or relativism, accepting these as to some degree inseparable from both theory and method. Both turn away from the absolutism and intuitionism of absolute ethics. Both are closer to the ethics of self-realization than to absolutism.

Citizen and State

13

They do not rely to any degree, in their theory, on the deep, unconscious life forces, as self-realization, to a certain degree, does. Both utilitarianism and pragmatism elevate the active, observing, experimenting, appraising, to-somedegree opportunist aptitude of man, which we may call here intelligence, the discriminative, practical principle. They hold that this alone is able to evaluate conflicting goods in terms of the useful or the furthering to man. This useful, this furthering, as these two forms of empirical ethics are linked, is the Greatest Happiness Principle sought by the pragmatic method. Intelligence is "of the essence" where man's good is at stake. By intelligence, in greater or less degree, man can discern what is likely to produce the good for him, and guided by intelligence, can work to bring this into being. Utilitarianism emphasizes the goal; pragmatism emphasizes the method. Both theories would hold that the good may be brought about by wise, discriminative choosing. But this choosing must take account, so far as this is humanly possible, of all the possibilities and of all the individuals and groups affected by such choosing. T h e two views are markedly similar, yet markedly different. In pragmatism there is a suggestion of opportunism, though this was probably not intended by James. Opportunism is not reflected at all in utilitarianism. Utilitarianism is not content to ask "Does it work?" but must know also what it works towards. Pragmatism would meet this distinction by the counter proposition that nothing would work for long unless conducive to happiness on a wide scale. Still, the Greatest Happiness Principle, as Bentham led it up out of a cruder pleas-

14

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ure philosophy, and as Mill developed it into utilitarianism, has a farther objective, more clearly formulated, and a sounder objective, more openly rooted in social betterment, than pragmatism can claim. "If utility," said Mill, "is the ultimate source of moral obligations, utility may be invoked to decide between them when their demands are incompatible. Though the application of the standard may be difficult, it is better than none at all." " Yet neither utilitarianism nor pragmatism would deny that a large measure of their planning was directed towards the goal of self-realization. James was thinking of this in his chapter on "Pragmatism and Religion." 10 Furthermore, the self-realizationist would not deny that, before any individual could be fulfilled, conditions would have to be pragmatically good, and also good in terms of utility. "When all the influences by which we are thought to become good are present, we get some tincture of virtue." So it is that the theories of self-realization, utilitarianism, and pragmatism, are mutually supplementary and interdependent. So it is that thinkers like Aristotle and Spinoza, who are most clearly understood as self-realizationists, are both tinged, prophetically, with the principle of utility in Mill's terms. T h e reasons should now be clear for linking together self-realization, utilitarianism, and pragmatism as three kinds of empirical ethics and definitely opposing them to absolute ethics. Absolute ethics stands alone. T h e Good is eternal, it says, and absolute, existing and operating as Idea despite all man may do or not do; it is to be known, not by anything so much

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the urchin as intelligence, but by intuition, or by lordly reason which belongs to the very essence of man. Following u p o n this analysis of ethical theories, as we prosecute the inquiry into the relation between ethics and political philosophy, it is proper to ask how, if at all, these several types of ethical theory relate to types of political theory. It is possible, for example, to regard, in political philosophy, the Idea of the State as an absolute, absolute in somewhat the same way that the Idealist in ethics regards the Good. Hegel is the classic example of the philosopher w h o so regarded the state. For Hegel, the state was an absolute with all its value in itself, not existing for the good of those individuals who make it up, but ultimately and absolutely good. T h e state's goodness for Hegel was such that it reflected goodness back upon its citizens. T h i s absolutely valuable state, I need not say, was the German state: the German state, in Hegel's mind, most fully expressed the Idea of Statehood. For this way of thought, the state does not exist for the good of the citizens; the citizens exist for the perfection of the state. T h e more completely the individual loses in the state his individuality and his separate interests, actually the more of a man he is. T h e following passages are taken from Hegel, Introduction

to the Philosophy

of

History. We infer—glancing at the institution of the State in passing— that a state is then well constituted and internally powerful, when the private interest of its citizens is one with the common interest of the State; when the one finds its gratification and realization in the other,—a proposition in itself very important. But in a State many institutions must be adopted, much political

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machinery invented, accompanied by appropriate political arrangements, . . . involving, moreover, contentions with private interest and passions, and a tedious discipline of these latter, in order to bring about the desired harmony. The epoch when a state attains this harmonious condition, marks the period of its bloom, its virtue, its vigor, its prosperity.11 It ought to be noted here, parenthetically, that the constitutional democracy would, perhaps, never find itself in this "harmonious condition." If it did, it would not be at all sure that this marked the period of its bloom, its virtue, its vigor, its prosperity. Democracy, as we know it in America, is a condition of tension, assumed, allowed, and even encouraged within constitutional controls. Tension is its bloom, its virtue, its vigor, its prosperity. Machiavelli gives expression to this very idea as he speaks of Ancient Rome. Had the Roman Commonwealth grown to be more tranquil, this inconvenience would have resulted, that it must at the same time have grown weaker, since the road would have been closed to that greatness to which it came. For, in removing the cause of her tumults, Rome must have interfered with the cause of her growth. Even the pragmatic test Does it work? must be suspect in the political methods of constitutional democracy. Methods, devices, institutions, must work—yes! They must be effective, that is. But they must work not in the interest alone of harmony (What crimes have been committed in that name!), but in the interest of the general expanding good. Here, again, the method of pragmatism must be subservient to the criterion of utility; for pragmatism directed towards harmony, unschooled by utility, would open the door to totalitarianism: the Great State, great in and for itself.

Citizen and State

*7

But this is in the nature of an aside. T o continue with the quotation from Hegel: The moral whole, the State, is that form of reality in which the individual has and enjoys his freedom; but on the condition of his recognition, believing in and willing that which is common to the whole. And this must not be understood as if the individual, in his relation to other individuals, thus limited his freedom in order that this universal limitation—the mutual constraint of all—might secure a small space of liberty for each. [This would be the motive of democracy.] Rather, we affirm, are Law, Morality, Government, and they alone [as the state with its whole value in itself] the positive reality and completion of Freedom. Freedom of a low and limited order is mere caprice. . . . The State is the actually existing, realized moral life. . . . It must be understood that the State is the realization of Freedom . . . and that it exists for its own sake. All the worth which the human being possesses—he possesses only through the State. . . . The State is the Divine Idea as it exists on Earth." Hegel's Philosophy of Law begins: "The State is the realization of the ethical idea." In the same work he says, as if to leave no doubt that his concept of the state might with confidence be indicated as "putative" sire of Hitler's: The freedom of public utterance (of which the press is one means, having advantage over speech in its more extended reach, though inferior to it in vivacity), the gratification of that prickling impulse to express and to have expressed one's opinion, is directly controlled by the police and State laws and regulations, which partly hinder and partly punish its excesses. The indirect guarantee lies in its innocuousness, and this again is mainly based on the rationality of the constitution, the stability of the government, and also on the publicity given to the assemblies of the classes. . . . The definition of the freedom of

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the press as freedom to say and write what one pleases, is parallel to the one of freedom in general, viz., as freedom to do what one pleases. Such view belongs to the uneducated crudity and superficiality of naive thinking.18 So, it is indeed possible to regard the state as an absolute, —absolute, as I have said above, in much the same way that the ethical absolutist regards the Good. Furthermore, it will be remembered that Hegel was not the last German nor the last man to hold this view of the state. Can it be maintained, we are asking now, that absolute ethics is more at home with an Ideal concept of the state, such as Hegel's, for example, than with a realistic polity like democracy? Is empirical ethics more germane to the empirical touchstones and cornerstones of democracy than to a concept of the state as Idea? When the state is elevated above its members as an institution having its value in itself rather than in its citizens (and we have seen this in our lifetime), there is a situation in which one might if one chose, perhaps, find some correspondence with absolute ethics. On the other hand, the state as a popularly directed process which works things out as best it can for the good of its citizens, does without question lend itself to correlation with empirical ethics. We need go no further than this. There is no need to press for an exact parallelism. Absolute ethics and the concept of the state as Absolute Idea, touch each other at more than one point and radically diverge at others. We excise from the scope of this book, however, any critique of those particular correlations and differences. But, conversely, a close correspondence be-

Citizen and State

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tween empirical ethics and democracy may justly be asserted. A type of state which is anything but absolute, "growing and decaying," indeed, "waxing and waning,"—almost everything Plato said the Ideal State was not—will be called in these pages the liberal or democratic state. The liberal state rests upon a theory of man's good which takes cognizance of his need for growth and self-realization. It takes cognizance also of utility. Furthermore, the pragmatic method as far as it goes is certainly not foreign to the workings of this state. Absolute ethics, with its concept of man's good as a remote but binding perfection, cannot readily be related to anything so workaday as the principle of democracy. Much of democracy is necessarily compromise. T o be sure, such compromise is entered into for the sake of good. But the good, for democracy, is compromise. By democracy, as the term is used in this book, is meant a theory of statecraft. The democratic theory holds that the state's proper and chief concern is by constitutional means to make possible a certain kind of life. This kind of life would allow and assist the citizens of the state to work out and to set in operation a program of general health, of growth, of sociability, of prosperity, of happiness. Such a program, such an audacious plan to promote the good life uncoerced by government, cannot succeed in vacuo. It can succeed only by means of education. Unrestricted inquiry and unweighted teaching are the best, necessary, and sufficient hope of democracy: for democracy, unrestricted inquiry and unweighted teaching are the very springs of be-

so

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ing. Religion, science, the arts, are more specialized but related freshets. These feed into the wide, free, never untroubled stream we like to think of as "the American way of life." But to discuss these forces here would burst the covers of my little book asunder. Let us return to our examination of democracy. Democracy holds that a loose governmental arrangement, challenging each and all rather than deferring to an overarching authority, will actually promote, more successfully than ad rem decrees, the fullest opportunity for such a program to realize itself. In this chief concern of democracy the correlation between the liberal state and empirical ethics should be apparent. Both are grounded in reality, are nonperfectionist and empirical to the last degree. Both maximate individual freedom, limiting it only in the interest of the general security and the general freedom. Under democracy, constitutional controls are imposed by the people to protect "all" from "each" and "each" from "all," in the attempt to make sure that none selfishly and unjustly overrides the hopes, purposes, and plans of others. This is the republican form of government. T h e profoundly empirical approach of both empirical ethics and constitutional democracy constantly shows forth and constantly holds true the close correspondence between them. Both would inevitably stem from a similar concept of man, and this alone, granted the empirical-pragmatic method, would keep them parallel. A connotative definition of democracy has been given, with the stipulation that the constitutional state developed under democracy will be called in this book the liberal state, or the democratic state, or the republican form of

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government. Thereby, it is hoped, a clear distinction is made between two things which are both called "democracy" in loose parlance: democracy the theory, and democracy the institution or form of government or state. As a denotative definition of the democratic state, a definition which points to an example of constitutional democracy or the republican form of government in action, we indicate (not without misgiving) the United States of America, as she has been developed since the Founding Fathers, established by her Constitution, continued by her processes of law, and directed by her wisest and most conscientious exponents. "Wise" may be taken to mean, here, "according to the standards of empirical ethics." The United States is not, and never has been, perfect. But democracy, as we know it, even in idea, much less in action, is not perfect, either. It is not a structure, but a process, an attempt to discern the best and to seek to make it work, and, if it will not work, to modify it or reject it and find something—perhaps not quite so "good"—which will work. Democracy must work if it is to endure. It has been said that absolute ethics is not easily accommodated to the workings of democracy. This is not to say that the democratic state is without ideals. Far from it. But its ideals are in no sense Utopian. Plato's Republic will serve as an example of an ideal state built on Utopian lines, and against this the ideals of a democratic state may be posed in contrast. The Republic envisioned by Plato is evolved from an idea which has more faith in human nature than the idea of democracy has, an idea which presupposes a leader class

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sans peur et sans reproche—without

fear, w i t h o u t r e p r o a c h ,

w i t h o u t stupidity, w i t h o u t w o r l d l y a m b i t i o n , and thus inc o r r u p t i b l e , a class preternaturally wise, trained, consecrated a n d docile to the service of the state, a n d a b o v e suspicion. T h e criterion f o r such a state is a k i n d of idee

fixe,

so to call it, to w h i c h , f o r purposes of comparison, the statesm a n has access. T h e man of understanding will not allow himself to be dazzled by the opinion of the world [Plato said]. He will look at the city which is within him and take care to avoid any change of his own institutions, such as might arise either from abundance or want. [Out goes the law of supply and demand!] He will be a politician in the city which is his own, [Glaucon suggests]. I understand; you speak of that city of which we are the founders, and which exists as idea only; for I do not think that there is such an one anywhere on earth. In heaven [Socrates assures Glaucon] there is laid u p a pattern of such a city, and he who desires may behold this, and beholding govern himself accordingly. But whether there really is or ever will be such an one is of no importance to him; for he will act according to the laws of that city and of no other. 14 Has democracy n o such ideality as this? P r o b a b l y it has; but, if so, it is v a g u e in o u t l i n e , k e p t well in the b a c k g r o u n d , and allows, as integral to itself, m a n y kinds of i m p e r f e c t i o n s and tensions. T h e democratic statesman is m u c h m o r e interested in the goal of utility and in the pragmatic test of w h a t w i l l work than in i n q u i r i n g what, is perfect. T h e very fact that it c o u l d n o t w o r k successfully, to the practical m i n d of the democratic statesman, w o u l d detract even f r o m its perfection. T h e P a t t e r n in H e a v e n for democracy is actually not Idea, b u t is a projected, c h a n g i n g scheme or process

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derived from the observation of human needs and human interests. Compare Aristotle with Plato here. Aristotle, before he wrote his Politics, is said to have studied more than a hundred constitutions of Greek city-states. This he did in order to discover what the needs of these groups were and how, under their constitutions, the various states undertook to meet these needs. From this source in experience Aristotle proceeded to work out his plan for a state which should preserve the values which he found men cherishing and seeking to preserve by government. Keenly he questioned even the premise on which Plato based his Utopia, the premise, namely, that "the greater the unity of the state, the better." 15 Aristotle's method is very different from the Platonic manner of dreaming up an Ideal Form to be the unvarying, absolute Pattern in Heaven for all good states. Plato's pattern is this "nature of wondrous beauty," as it might be evidenced in statecraft: "everlasting—not growing and decaying, without diminution and without increase." It is the pre-existent, perfect, timeless, unchanging Idea. The difference in these methods should be apparent. Not only is democracy disinclined to address itself to an ideal which, because of impracticability, is beyond utility; it actually distrusts the far-flung ideal, finding that its very impossibility of achievement obscures the nearer and more practicable objective and dazzles the mind which searches for remedies and solutions. The idea of democracy lacks the perfection and fixity of the absolute idea: it is shifting and in process, shaped to humanity itself, which changes its tune from time to time,

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if it does n o t c h a n g e its nature. C o n c e r n e d w i t h the Greatest H a p p i n e s s P r i n c i p l e , it derives f r o m the flux of experience, f r o m the give-and-take of h u m a n intercourse, f r o m the very " d i m i n u t i o n and increase" w h i c h the absolute Idea, so c o m p l e t e l y discountenances. It is o p e n to the charge of b e i n g " t o o s h r e w d . " Its shrewdness m a y lead it to be content w i t h too little, f e a r f u l of u n b a l a n c i n g itself by reaching a f t e r the unattainable. F r a n k l y a n d b y i n t e n t i o n , the idea of d e m o c r a c y does c h a n g e w i t h a b u n d a n c e or want, changes w i t h a thousand needs a n d w i t h a t h o u s a n d swings of p u b l i c o p i n i o n a n d e n v i r o n m e n t a l factors. D e m o c r a c y is a construct and a s h i f t i n g construct, derived n o t f r o m o n e perfection, b u t f r o m i n n u m e r a b l e imperfections, a n d so p r o j e c t e d i n t o the f u t u r e or i n t o a referable H e a v e n , if y o u w i l l , as a fluid p a t t e r n of statecraft. U n l i k e U t o p i a , the democratic state is a d m i t t e d l y and by intention strong at o n e time a n d weak at a n o t h e r , a c c o r d i n g to w h e t h e r o r not there is n e e d of p r o t e c t i o n at h o m e f r o m a p o w e r f u l enemy w i t h i n or w i t h o u t . W h e n things are comparatively p e a c e f u l at h o m e (if such a t i m e s h o u l d ever c o m e again), ideally the democratic state should, as it were, " p u l l in its h o r n s , " g r a n t i n g its citizens f r e e d o m to create and produce. T h i s it is w h i c h has caused citizens of the U n i t e d States to want to b e isolationist, w h e t h e r it m a k e s sense o r not. O n l y a grim, grave facing of w o r l d realities can persuade us that w e must c o n t i n u e to be alert and serviceable internationally, because for us to be alert and serviceable internationally means that w e must c o n t i n u e to i m p l e m e n t the state w i t h m o r e p o w e r than w e l i k e the state to have. Internal fulmina-

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tions of labor and of management, alike, we try to remedy with as little meddling from the state as possible: we have found that such meddling does not really, in the long last, work. T h e people meddled with are all individuals associated into groups, and individuals imbued with the principles of democracy do not like to be meddled with. Unless our very safety is threatened, whether from within or from without, we like the state to slacken the controls and beam like a National Good Fairy on business booms, on the activity of unions, on "projects," and on "the arts." Democracy is man's high adventure in adjustment, in correlation. It is a continuous endeavor to adjust and to correlate his vaulting and impatient desire for freedom for the individual, which is a drawn sword against oppression, with his more cautious need for security, which the state through government can provide. By a continuous weighing of these two, freedom and security, the one against the other, democracy seeks to establish and maintain a delicate balance, which must not be allowed to swing too far either one way or the other. We desperately distrust anything which threatens to cut into our freedom; yet an advanced degree of freedom leaves us defenseless. So democracy is a compromise, a makeshift, and does not pretend to be anything else. Yet it should not be forgotten that freedom for the individual means not only freedom to follow opportunity and freedom to follow interest, but freedom to follow conscience as well: freedom for expediency, freedom for self-development, freedom for right. There are political forms which are definitely opposed to democracy in this sense. These are, on the one hand, com-

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munism, and, on the other hand, totalitarianism, or the allpowerful state. Russian communism is not what we think of as the communism Marx formulated. T h e strange merger of communism and totalitarianism which is the USSR today invalidates, for practical Western minds, the whole putative workability of Marx. If communism, the share-and-sharealike (so to call it) of the proceeds of labor, cannot operate except under the heel of dictatorship, with its internal spy system and its Gestapo, they argue, then it simply cannot operate. Marx said of the capitalist system that what it produced, above all, was "its own grave diggers." Ironically, and not insisting on the dialectic, we may say (hopefully!) exactly this of Russian communism today. Karl Marx, the father of communism, considered the state the people's enemy, and directed that it must "wither away," once the proletariat was stabilized in the saddle. "From each according to his ability, to each according to his need," could in this way, and not otherwise, Marx thought, become the watchword of the Brotherhood-of-Man-Come-True. Now, in the USSR, there is no sign of the state's withering. But, in point of fact, the USSR has not departed so far from Marx as might at first appear. Under the very heel of dictatorship, she can hold to the idea of the stateless society, and quote Marx to her purpose as she does so. For an older, more astute, more disillusioned Marx, in his Critique of the Gotha Programme, allowed explicitly what had been only suggested in Capital, that an interim period would necessarily intervene between the downfall of capitalism and the stabilization of proletariat rule.

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In a higher phase of communist society, after the enslaving subordination of individuals under division of labor, and therewith also the antithesis between mental and physical labor, has vanished; after labor, from a mere means of life, has itself become the prime necessity of life; after the productive forces have also increased with the all-round development of the individual, and all the springs of co-operative wealth flow more abundantly,—only then can the narrow horizon of bourgeois right be fully left behind and society inscribe on its banners: "from each according to his ability, to each according to his needs!" 19 The interim period, Marx said, would have to be presided over by a "revolutionary dictatorship of the proletariat," 1T to bridge the gap between the old order and the new. Communists can, if they care to, point to the present regime in Russia as the fulfillment of this prophecy. Marx' Critique of the Gotha Programme apparently sustains to his earlier Capital a relation similar to the relation of Plato's Laws to The Republic. Both men, having drawn up ideal specifications for an ideal society, were later schooled in distrust by their interested observation of the creature man in society. Marx modified his absolute idealism (for such, from one point of view it was) in the Critique, and Plato modified his in Laws. Marx asks for time, providing for an interim dictatorship. Plato asks for "the golden cord" of the law, to distrain men from their greedy excesses: " T h e sacred and golden cord of reason, called by us the common law of the state." 18 So Russia, even now, can distort the Marxian modification into an uneasy parallel with her present oppressive totalitarianism. And Plato's conces-

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sions in Laws have thrown into relief and made more poignantly appealing the majestic concepts of his earlier work. Still and all, in spite of the grossness, cruelty, and misuse of power that is the present-day USSR, in the minds of highscale visionaries the idea of the classless society rides on. Communism as Idea, as an absolute idealism in the field of political philosophy, is untouched, as all absolute ideas arc untouched, by empirical considerations. O n a practical level, whether Marx would approve of the present Russian dictatorship or not might be argued pro and con. One may hazard the guess that he would weep tears of bitterness and disillusionment. One may hazard the guess that he would say, "It is a necessary phase." It is a fact that those Russians who are on the "policy-making level" in the present government like to, and can, quote Marx to their purpose. Communists anywhere, it is safe to say, who see that to scheme for communism is to scheme for power, scheme the more slyly and the more ruthlessly for that reason. T h e voice of Marx, for all its humanitarian overtones, was the voice of ruthlessness. And it still is. A n important facet of Marx' philosophy is the theory of dialectical materialism. According to Marx, the communist revolution was to come about by deep-seated and finally irresistible internal social pressure towards the reversal of the capitalistic status quo. T h i s reversal would be brought about in large measure automatically by the working of the evils inherent in capitalism. These evils, the greed, injustice, and power selfishly used, of the capitalistic order, Marx saw as a kind of venomous yeast fermenting in the vat of society to the point where the existing order would become intoler-

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able. T h e n the proletariat w o u l d arouse themselves as a force contributing to the inevitable reversal. A i d i n g it and furthering it, they w o u l d ride on the crest of the h u g e tidal wave, as it were, automatically engendered, w h i c h was destined, by this vast dialectic, to leave them free and in control. T h i s is the dialectical materialism of M a r x . It is materialistic in the usual sense, and dialectical in that the great sweep of social t h i n k i n g from one extreme to the other was to b e accomplished by an inherent, inevitable swing of the status quo to its opposite. T a k e n at its face value, the persuasiveness of this dialectical-materialistic aspect of communism seems to be at a low ebb, even in the U S S R . It is not particularly relevant to our understanding of c o m m u n i s m today, nor is it very m u c h to the fore, I v e n t u r e to say, in contemporary Russia's understanding of c o m m u n i s m . B u t Marx* concept of the state as a residual evil is important, because it was an active catalytic in the c o m m u n i s m that emerged out of the Russian revolution of 1917 and is a latent factor in all communism. O n l y covertly, indeed, has contemporary c o m m u n i s m veered from its loathing of the state as the state. N o w it loathes the state unless set u p and controlled "by labor, for labor." T h e state w h i c h can claim to be set up and controlled by labor for labor, specious and false though this claim may be, is submitted to with religious fervor u p to a point, and then with fear. T h e fact is, however, that the U S S R , in order to m a x i m a t e the importance of the laboring class above all other classes, has had to b u i l d a long-term, all-powerful state to hold her enterprise in equilibrium. T h i s is in effect a refutation of dialectical materialism. For it was the whole meaning of dialectical materialism

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that the swing from the bourgeois class to the proletariat, and from capitalism to communism, would come about as the result of profound, inevitable, and irresistible forces arising out of the capitalistic status quo itself. The fact that this has not held true says a great deal about man, a great deal about communism in general, and a great deal about the USSR. If one has had the idea that mankind, by and large, are creatures who can live in love and brotherhood and sharing, without strong controls from an external power upon their greed and self-seeking, then the Russian re-enactment of the discovery that they are not comes as a sad awakening. Certainly, even to those who have had a more realistic, or even cynical view of man, this is nothing to gloat over. Nor does it incontrovertibly prove, with mathematical certainty, to everybody's satisfaction, that communism is forever impracticable. Communism has worked on paper! And something very like it has worked for short periods in small, homogeneous groups where all members have been docile to the same indoctrination, as, for example, in the first century Christian community. But the USSR has notably failed to stabilize a communistic culture without undoing its very raison d'etre by imposing totalitarian controls. This (Critique of the Gotha Programme to the contrary, notwithstanding) is, without a doubt, a great part of the case against communism. It could be said that the fault lies, not with communism, but with noncommunistic environmental groups and countries. The answer is that there always will be such environmental disharmony, unless we are to suppose that Russia can actually conquer and hold the world while her cen-

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tral governing power withers away or gets ready to wither away. In The Critique of the Gotha Programme, besides preparing the minds of communists for the necessity of an interim dictatorship, Marx prepared their minds also for the necessity of an interim noncommunistic economy. This, like the dictatorship, he foresaw as a transition stage. Full-blown communism could not go into effect at once. "What we have to deal with here is a communist society . . . as it emerges from capitalist society; which is thus in every respect, economically, morally, and intellectually, still stamped with the birth-marks of the old society from whose womb it emerges." 18 Doomed capitalism, in its death throes, he said, would be able temporarily to check the dialectic. A transition economy, therefore, which he called socialism and probably conceived as a form of national socialism under the dictatorship, must intervene. T o the necessity of this transition stage the USSR can now attribute, with a certain amount of warping, all her departures from strictest communism. Fascism, seen as the great, paternalistic state, governing her dedicated citizenry with wisdom and justice and mercy, has, like pure communism, reality only as idea. This also, like the stateless society, more and more is seen to be, as Kant said of all such, "an Idea only, but an Idea without a flaw." T h e pure reality of these two political forms, communism and totalitarianism, is to be found only in the world of idea, in the world of dreams. On the one hand there would be the dream of a community so reasonable, so humanitarian, that its members would share and share alike, under a kind of Anarchism of Good Will, without the need

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of government to control or coerce them. On the other hand there would be, in contradistinction, the dream of a great, all-powerful state wisely providing for all of her citizens according to the best good of each. These are, indeed, ideas only, given humanity for what it is, and visionary ideas, at that. As such, they are in the pure tradition of absolute ethics. Democracy lies in the uneasy give-and-take between these two extremes. It has not so much faith in the common man as communism has, which holds that mankind is implicitly co-operative, unless exaccerbated by the greed and controls of government. Nor has it so little faith in the common man as the Great State idea implies, which holds that man is inept and inadequate, and would best, without asking any arrogant questions or harboring any insubordinate doubts, submit his destiny to the management of a powerful, wise, beneficent state. If such a state is despotic, well, anyway, it's safe! (Or isn't it?) It will be asked, If Russian communism is not thoroughly Marxist, what is it? What are the characteristics of modern communism? T h r e e points may be suggested as today inherent in the meaning of the term "communist," in countries where the communist party is in control or strong. These three points are: (i) A high degree of party unity and party unanimity, either arising spontaneously out of the newness and insecurity of the party, or enforced by a communist party already high in power. (2) Unusually taut discipline within the party, to safeguard its unity and unanimity, and when the party is strong enough, to put ruthless pressure on nonmembers in order to bring them into the party. T h i s serves to create a nearly irresistible drive towards one-

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party government, and that the communist party. Various instruments for exerting pressure have been used, from wire tapping and terrorism to "liquidation." One such instrument is the "purge," cloaked in dreadful secrecy, and another almost as effective is morally irresponsible and unsleeping propaganda. Such propaganda is not only used intramurally, but is directed as well against noncommunist countries. (3) A relation between government and organized labor such that government, in paramount degree, represents, protects, or controls organized labor by organized labor's consent, or evinces a settled plan to do all three of these things. In countries where there is either a communist government in this sense or a dominant communist party in this sense, the state shows very definitely the effect of this communism. Under such communist governments, as always under fascist governments, the one-party government tends to maximate itself and finally to absorb and assimilate the state. This is at variance with democratic countries, as we have used the term, where government is the instrument which the state (as the people) sets over itself to bring about a workable correlation between freedom and security. Communism as Idea has its origins in social hope. But communism as a rallying-cry today has its origins in despair; its fruits are desperation and the tight, so-called "therapeutic" techniques of totalitarianism. Plato saw this. His serving up in a nutshell of this situation is too good to resist quoting here from the dialogue of the Republic. "The people have always someone as a champion whom they nurse into greatness." "Yes, that is their way."

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"And this is the very root from which a tyrant (dictator) springs; when he first appears above ground, he is a protector." "Yes, that is quite clear." "How then does a protector begin to change into a tyrant?" "Clearly when he does what the man is said to do in the tale of the Arcadian temple of Lycaean Zeus. The tale is that he who has tasted the entrails of a single human victim minced up with the entrails of other victims is destined to become a wolf. Did you never hear that?" "Oh, yes." "And the protector of the people is like him. Having a mob entirely at his disposal, he is not restrained from shedding the blood of kinsmen; by the favorite method of false accusation he brings them into court and murders them; . . . some he kills and others he banishes, at the same time proclaiming abolition of debts and partition of lands; and after this, what can be his destiny but either to perish at the hands of his enemies, or from being a man to become a tyrant." 20 This is Plato's description, written more than two thousand years ago, of the way a dictator rises to power, endorsed by the people, out of chaotic conditions which made the people fear. A purge, short of blood-shedding and exile, is all too easy for a ruling party in any state except a constitutional democracy. In a constitutional democracy the judiciary sits in unremitting judgment, and controls upon the executive and legislative power are diffused throughout the nation. In the United States, for example, any group may serve up an emotionalized appeal for a purge of communist sympathizers. But the more sober and constitutional protection of free speech will have none of it. T h e State Department may initiate a purge of employees whose scandalous disloyalty

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has been proved almost beyond dispute. But, from even such cases as this the veil of secrecy will be stripped by the insistence of a people determined upon freedom and due process of law. Y e t in a freedom-loving state there is, and must be, vigilance to force out into the open matters pregnant with possible harm to the commonwealth. Shrouded in secrecy, anything can be brewing. A t no time in our history has this concern come so close to crystallizing in the form of a national policy as at the troubled present. W e have seen the countries of eastern and central Europe infiltrated by agents of communist USSR. W e have been infiltrated, ourselves. Recognizing that there is a Communist party in our own country, also, which has affiliations with Russia, we have formed the determination to seek out and remove from governmental positions of trust and influence every disloyal employé of the state. T h e searchlight is turned also on our institutions of education. T r u e , we recall the Declaration of Independence from which our statehood derives. T h e second paragraph allows "the right of the people to alter or abolish" oppressive government and "to institute new government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness." T h i s w o u l d seem to give considerable scope to subversive activities. But twelve months after the Continental Congress had adopted the Declaration of Independence, the Constitution of the United States became law. T h e Constitution of the United States provided the people with controls which could effectively prevent the

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"abuses and usurpations" which the Declaration was concerned to guard against. Under the Constitution we are protected from pressures from government which the majority of the people do not approve. Since that time, it is safe to say, the rights of revolution, of revolutionary propaganda, of gunpowder, treason, and plot, have increasingly lost favor with the American people. Especially is this so since recent years have revealed that subversive elements in this country, as abroad, can very easily be strengthened by infiltration, be excited and implemented by help from a foreign government for the furtherance of that government's aspirations and plans. Destruction can come in small packages, almost unnoticed. Neither ideologies nor atomic weapons take up much room. T h e American commonwealth and the American people are alerted, as they have never been alerted before, to the danger from subversive activities, and even from inertia here at home among the lackadaisical, the former "fellow travelers," who have not done much thinking aloud in recent years. T h e Communist party in the United States is an organ of liaison between whatever organized laborers and labor sympathizers in this country are communists and the Communist party in Russia. A communist government gives to labor a status and prestige that is very special, and very special protection to labor unions. Democracy does not. Democracy accords a higher status and prestige to brains and training than to unskilled labor. For us, that a man give of his best ("from each according to his ability") is never equated in social terms with something much more socially valuable

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given by some other man. T h e concept "more socially valuable" would not strictly come into communist evaluation at all as qualitative, if both men were giving according to their ability. Whereas to the democratic scheme, brains are found to be of much less frequent occurrence than brawn and at least equally indispensable to production. A desperate scarcity of brains can occur in a community, even when there is a plethora of brawn. Also, the man of brains often has brawn as well, and can convert himself or be converted into the man of brawn when need of brawn occurs. Under the great instrument of adaptation which we call the law of supply and demand, the man of brains and brawn combined may find it more profitable to sell his brawn than his brains, at least pro tem. Thus, in an all-over survey brains are rated above brawn against the background of the common good. Democracy tries to be fair to labor, and should be held to scrupulous justice. But certainly she gives to industrial management a full measure of protection. The voices of labor in this country tell us that an undue measure of discriminative protection is given to management. The voices of management, for their part, are shrill with alarm that labor may receive such a measure of protection as will cripple management's functioning power. Here is another of democracy's responsibilities: to work out a mobile and fertile adjustment such that the productive freedom of neither group shall be impaired, and such that both groups may feel that they are being treated with justice. For this to be possible, even as a faulty and current business, would require that each side learn to understand the

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other's story, learn well the pressures and pinches felt by the opposed group. This is not impossible in a country like ours. Education should promote this. It requires only intelligent study and honest consideration on the part of labor to appreciate the economic difficulties which management must meet and overcome if they are to answer the country's need for production. It requires only intelligent study, honesty and consideration on the part of management to appreciate the economic difficulties of the group who have, all too often, only their labor to sell. There is no monopoly of intelligence, honesty, and consideration in either group. And it is important for both that continuity of co-operation should be worked out. The searchlight of publicity should be trained on the importance to each of good relations with the other. Surely, as we wrangle over the rights of man, we should not forget what is to that concept as concave to convex: namely, the duties of man. T h e rights and duties of man: for democracy these can never be successfully divorced. Internal labor-management warfare is dangerous to both groups, since it threatens the commonweal; it is dangerous because it discountenances democracy before the world. "War," perhaps, is a strong word for labor-management tension in the United States. But here we may recall the words of Thomas Hobbes. "War consisteth not in battle only, or in the act of fighting, but in a tract of time, wherein the will to contend by battle is sufficiently known: and the notion of time is to be considered in the nature of war, as it is in the nature of weather." 21 There have been times when "the will to contend by battle" has not been far below the surface in labor-management relations in the United States.

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gg

These three, the communistic, the totalitarian, and the democratic, are three possible types of state. But they may be thought of more basically as three diverse theories of human association, explainable by varying degrees of faith, or lack of faith, in the value of the state—of any state, of statehood. Marxian communism, which in the main is the ground for Russian communism, holds that the state, as practically constituted in order to function as a state, is diametrically opposed to the worth and to the interests of man. This view holds that the state is the production and the manifestation of the irreconcilability of class antagonisms, that it is the enemy of men, not the friend. According to Marx, the state came into being to protect private property and to undergird that evil accumulation of individual wealth which brought into being a wealthy class. It is inevitably the instrument of that class, he contended, and as such should be an object of distrust. When the bourgeois class goes into the discard, Marx said, government will be tolerated only so long as it is needed to see the revolution successful and the proletariat firmly established. Then, having served its sordid purpose to the end, it could safely be cast out, leaving the proletariat free. Mankind had nothing to lose but their chains. T h e state had forged them, and in continuing, lengthened and strengthened them. Insofar as contemporary communism is the lineal descendant of this way of thought, it does distrust the state. It is, perhaps, due to this very distrust of the state and the fact that the original communistic type of association has not been able to establish itself and grow without protection, that it lays itself open to sei-

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zure and rule by a despot in sheep's clothing. A n individual dictator is more readily trusted than the diffused power of the state, especially if that individual dictator is known as "the friend of labor." T h e idea of the Great State is based on an altogether different theory of association. For this theory the value of the state is paramount. T h i s view, tersely expressed by Thomas Hobbes, holds that government is the outgrowth of fear. Fear has drawn men together, Hobbes said, in spite of and because of mutual distrust. Men befriend each other in propinquity so as to be protected against the ever-watchful aggressor, within or without. T h e state is a social covenant for defense. " T h e only way to erect such a Common Power as may be able to defend us from the invasion of foreigners and the injuries of one another . . . is to confer all our strength and power upon One Man, or one assembly of men that may reduce all our wills . . . into one Will." 22 Since, over a long time, man's "will to battle" had been well known, there seemed to be nothing for it, according to Hobbes, but to erect for defense a state. In Hobbes' mind the state as the outgrowth of fear, which carried over into the idea of an all-powerful state or sovereign, need be responsible to none but itself. T h e state is man's best friend. Only very great power, enlarged, intensified, and consolidated into the central authority, it appeared, could make man really secure against his neighbor and against the more distant aggressor. Ridden by this preoccupation, Hobbes was willing to forego the very liberties England had battled to win. So it has ever been. A condition of mind or an actual condition which reveals or plays up

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a desperate and chaotic vulnerability as man's chief relation with his fellows has led and will lead again to the Great State. So it was in Italy when Mussolini took over, and so in Germany when Hitler did. In Russia, communism, which did begin as something very different, felt itself so menaced from without that a dictator and a despotic state have won to power. This state is a kind of vicious incrustation upon what was originally envisioned. These political forms, the modern communistic state and the great, or totalitarian state, have felt themselves completely divergent and alien, each from the other. T o our minds they do not seem very different. Actually, they stem from opposed theories of association. But the fact that the economies of both are collectivist, that is, managed by the state power, brings them, according to a criterion by us deemed crucial, into the same category. This point has been considered arguable. But recently it has been clinched, at least for the communists. William Z. Foster, chairman of the Communist party in the United States, defining socialism as "the common ownership and operation of the national economy under a democratic government of the people, led by the working class," goes on to say: "Communists . . . support Socialism as our long-range objective. . . . Communism is a higher stage of society than Socialism, and, save for the Soviet Union, is not yet on the world agenda of practical politics." 23 In these words he links together the two end-products of the socialist trend (as he defines it), communism, that is, and fascism, clearly and unmistakably, as far as their economies are concerned. We raise an eyebrow at Mr. Foster's use of the word "democratic" in his

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definition of socialism, and should be inclined, before accepting it, to ask Mr. Foster for a definition of "democratic" as he employs the word. But this is not particularly relevant at this point in the present discussion. Nor would Mr. Foster be likely to oblige, except in very specious terms. But, if he did oblige, even in quite specious terms, the difference between such democracy as this, where government asserts that it is operated for the people, and constitutional democracy, where government actually is operated "of the people, by the people, and for the people," would become apparent. It would seem, that in order to endure, both communism and fascism, wherever they have appeared, have had to be bolstered from within by intensive and reckless propaganda. This links them more closely. All citizens have been intensively indoctrinated, but especially youth, in the precepts and practices of that particular government. Furthermore, besides positive propaganda employed intramurally, both have waged fierce, negative propaganda in the attempt to undermine opposed types of state and statecraft. These similarities, however, do not alter the fact that the two political forms are, in their basic theories of association, diametrically opposed. One comes into being as an expression of man's faith in man; the other as an expression of man's distrust in man. It is a paradox that they arrive at the same juncture. There is a third theory of association, which derives neither from man's overweening faith in his fellow man nor from overweening distrust. Aristotle expressed it when he said that man is a political animal, politically-minded because he is man, instinctively so, as the ant is socially minded because it is an ant. John Stuart Mill, in Chapter III of

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Utilitarianism, calls the social feelings of mankind "a powerful natural sentiment." He so designates the desire to be in unity with our fellow creatures, which is already a powerful principle in human nature, and happily one of those which tend to become stronger, even without express inculcation, from the influences of advancing civilization. The social state is at once so natural, so necessary, and so habitual to man, that, except in some unusual circumstances or by an effort of voluntary abstraction, he never conceives himself otherwise than as a member of a body.24 Here are three theories of the state: (1) the state a distrusted necessity, the enemy of man, an evil, divisive, instrument; (2) the trusted state an outgrowth of fear and mutual lack of confidence between man and man; (3) the state as a natural, inevitable development, arising out of man's inherent drives and out of his group needs. Hobbes did not, of course, mean to approve totalitarianism, exactly. That is not what is meant. But he did see the state as primarily, if not entirely, man's embattlement against aggression from within and from without, and therefore not to be questioned, curbed, or gainsaid. "Fear and liberty are consistent, as when a man throws his goods (wittingly) into the sea for fear the ship should sink." 25 Accept this as the prime meaning of the state, and you have the nucleus of paternalism, the kernel of the Great State. The final purport of such mutual distrust within the commonwealth is the state to which the individual is ruthlessly subordinated, at first "for his own good," perhaps, but ultimately for the luster and grandeur of the state itself. The individual comes to be regarded as no more than an adjunct

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of the state, important only because the state is what it is. Whereas the liberal, or democratic state, built because man is minded to be political, founded on faith in man's inherent decency and worth, sees each individual as an end value, served by the state he creates to serve him. " T h e state is by nature clearly prior to the individual,"

26

Aristotle

said; and I take it that by " p r i o r " he meant not prior in time nor prior in importance, but essentially and logically prior. T h e state is in each individual, that is, more irrevocably, even, than each individual is in the state: the state has emerged from the individual more truly and more simply than the individual has gone into the state. T h e r e is no sentimentality in Aristotle, ever. H o w rigorous and pure his statement is, compared with the stilted affectation of Rousseau, " W e begin properly to become men only after we have become citizens."

27

T h e state in Mill's sense and in Aristotle's, because naturally arrived at, is optimistic in its philosophy, democratic in its polity, concerned with the greatest good for the greatest number. It must, of necessity, be slow, halting, and often inefficient. It is founded, as Aristotle has very clearly shown, and Walter L i p p m a n n and others after him, on the great middle class, w h o resist the absolute state, who resist the dictator, because they are content with what they have or expect to get what will content them. It hates war, because war is the destroyer of so much it seeks to build. So, a thing of many voices, it tends to muddle along, concerned to keep itself in a milieu of peace and prosperity. Conceivably, it might sometime m u d d l e too long. Intramurally, as has been said, it views man neither with

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overweening faith nor with overweening distrust. Its greatest spokesmen, Plato in Laws; Aristotle in Politics™

Milton,

Locke, Jefferson, Hamilton, Mill, and others more recent and more controversial, have not minced their words in affirming that man is a greedy beast who wants watching, but that, when he is regulated and schooled, there is hope for him, good in him, and large powers of cooperation to work out social justice on a wide scale. Actually, it is upon this distrust of man's complete purity of motive and reliability when tempted that Locke rests his case for representative government and, as against absolute monarchy, less directly for freedom of speech and press. Remember that absolute monarchs are but men; and if government is to be the remedy of those evils which necessarily follow from men being the judges in their own cases . . . I desire to know what kind of government that is . . . where one man commanding a multitude has the liberty to be judge in his own case, and may do to all his subjects whatever he pleases without the least liberty to anyone to question or control those who execute his pleasure? And in whatsoever he doth, whether led by reason, mistake, or passion, must be submitted to? . . . If he that judges, judges amiss in his own or any other case, he is answerable for it to the rest of mankind.-9 T o M a r x the proletariat was a "messianic class," destined to rescue civilization from despair and chaos. T h e proletariat was a messianic class of saviors who were to take over the state, to invest in it a little brief authority and then, as soon as the time was ripe, knock from under their perfect form of association the vicious props of statehood. If there is a "messianic class" for the liberal state, it is the middle class I have cited, the class of small homeowners, the ever-shifting class

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with enough brains, enough ambition, enough initiative, enough opportunity, to attain a satisfactory measure of the ends they desire. This middle class for the democratic state is the primary source of authority, a strong, unbiased group which, because it is the largest group, actually confers upon the state its power of statehood. On the one side is a class (though its outline is obscure and shifting) of wealthy industrialists; on the other is the relatively unpropertied proletariat (though its outline is equally obscure and shifting). The democratic state talks a great deal and hears a great deal about its duty to these two classes. Let it never forget the middle class, which has its fingers in both pies, for this is the side on which the bread of liberalism is buttered. Is there a "messianic class" for the absolute or totalitarian state? This is the Hobbsian concept in its extreme form, the state because of fear. Fear is a monster which spawns its kind by the million, necessitating an ever-stronger government to protect man from his neighbor's inhumanity. But it is possible for him to be protected till he is enslaved and emasculated. The state that was part of his manhood, as Aristotle put it, is then externalized and implemented to the teeth and to the point of totalitarianism against the individuals it professed to care for. In this state the "messianic class"—to continue our metaphor—becomes the state itself, a kind of "overstate" with extraordinary appetite for despotic power. This idea, this Hegelian Absolute, is in a sense the source of authority for the Great State. And it cannot be doubted that such despots as Hitler and Mussolini, and now Stalin, though they knew not directly the absolute idealism of Hegel, indirectly were confirmed in their dicta-

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torships from this source. The Great State is too great to derive its authority from any human source or to draw its power from any fount of commonalty. "The individual is nothing. . . . Das Volk is everything." "All within the State, nothing outside the State, nothing against the State." "Capital exists for business, and business exists for the State." Stridently, and familiarly, still, such words fall upon our ears. Pure communism never gets very far beyond the transcendental stage, the stage of Idea. Human nature will not normally brook for long the boredom and indignity and unproductiveness of an enforced leveling. So the communistic turn of mind begins to talk and act like Stalin, converting the fiery religion of its philosophy into a patriotic fanaticism that rattles the saber as it misrepresents and accuses. Blood and iron in the hands of the proletariat are as tempting to the holders of them as blood and iron in the hands of the propertied class. They whisper power. Power then rebuilds the state in greater ruthlessness than it was built before, whether through dialectical materialism, in the Hegel-Marx-Spengler tradition or, more likely, through a human-all-too-human lust for power and the opportunity to unleash it. History does not stop with an empowered proletariat. Let us now sum up a sketchy analysis of these political philosophies. Under communism man trusts his neighbor (if he be not propertied) and distrusts the state; under totalitarianism he distrusts his neighbor and places his faith in the state; under democracy man's faith in his fellows varies as his faith in the state, each supporting the other and each

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deriving from the other sustenance and power. As the citizenry for any reason, be that reason within the state or without, grow distrustful of each other, they are growing away from the principles of democracy and towards totalitarianism. As for any reason, be that reason within the state or without, they grow distrustful of the state, they are growing away from the principles of democracy and towards communism. T h e liberal state must be the guardian not alone of our liberties but also of the nice adjustments, the delicate balances which, when kept true, make for human happiness and well-being, but when neglected and warped, make for human misery and enslavement. A very fair touchstone of the three basic polities we have been considering is the concept of anarchy. By anarchy is meant here what it purely and simply means, a lack of centralized government, not chaos or revolution, but diffusion of governmental responsibility: the absence of bureaucracy centered and epitomized in the state. T h e very idea of the totalitarian state, of course, would be opposed to this notion as having anything of good in it, just as this notion would be subversive to the totalitarian state. For the totalitarian state is the elaboration of central government, the detailing of governmental responsibilities to the finest minutiae, the raising of governmental powers to the nth degree. So anarchy, as defined above, would be for this philosophy preposterous. For communism, as originally enunciated by Marx and Engels, anarchy by the abrogation of centralized government was a practical objective, around the corner, to be sure, but just around the corner. T h e proletariat would

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ultimately be able, Marx thought, because of the homogeneity, the simplicity, the moderation of their needs, to live together in peace and plenitude under the broad canopy of heaven without any overarching state power. T h i s notion of anarchy as practicable in the long run would be a necessary concomitant of any true communism. A n y government, except government by decentralized committees of workers, perhaps, must entail a hierarchy which could not but vitiate, ultimately, the communistic ideal. It is only as the spirit of communism found itself suffering frustration, and the scheme of things verging towards a centralized government, that the objective of anarchy could be deferred or repudiated. T o the democratic state, however, in contradistinction to both of the above, this concept of anarchy in time of peace is not detestable any more than it is practicable. For democracy this concept is, indeed, a vaguely formulated ideal, an ideal so utterly unobtainable, it is true, as to have only the normative value which recognizably unobtainable ideas may have. T h e concept of anarchy, taken thus, should be for the democratic state, as Aristotle said of "right reason," a "mark with his eye upon which a man tightens or slackens his r o p e " — a mark to shoot at, not just to contemplate. As such an ideal, it should be for the liberal state, and it is if the liberal state is true to itself, an integral part of the projected, changing scheme, which is its shifting and remotely conceived Pattern in Heaven. For the liberal state desires, insofar as this is consonant with security, to reduce its mechanics of government, its bureaucracy, its officialdom. It knows these cannot be altogether dispensed with. But it

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seeks to keep them within bounds, to reduce them to an irreducible minimum. In times of peace the irreducible minimum is considerably more minimal than in times of war or threats of war. I like very much what Walter Lippmann said on this point in The Good Society. It is generally supposed that the increasing complexity of the social order requires an increasing direction from officials. My own view is, rather, that as affairs become more intricate, more extended in space and time, more involved and inter-related, overhead direction by officials of the state has to become simpler, less intensive, more general.30 In times of peace, or comparative peace, the democratic state trues itself towards the distant and unattainable mark of anarchy, toward social accord without encumbering centralized bureaucracy. T h e truly democratic state is a vote of confidence between man and his fellows. It is a pledge of justice. It offers its citizens the highest degree of civil liberty that can be developed in a matrix of civil security, and the highest degree of security that still can leave man free. Practically, in a workaday, hard fisted, ruthless world it offers, more than any other state does or can, a shifting rapprochement, an elastic correlation between these two: desired freedom and necessary protection. These, under democracy, are adjusted and readjusted according as the body politic is jealous of its liberties or fearful for its safety. The democratic state can function successfully—and "successfully" is a comparative term, loosely used—only as we citizens of the liberal state "remember our manners." It is essential that we remember the lessons in self-discipline and consideration for others

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which decades and centuries of the uses of democracy have taught us. There are, then, two main types of ethical theory, as defined here, absolute ethics and empirical ethics. There are three types of political theory. (1) There is Marxian communism, expressing man's faith in man, if all be leveled to the proletariat, and his distrust of the state because the state is held to be the stabilizer and perpetuator of class differences. (2) There is totalitarianism, expressing the belief that man's only hope of security is to forget his dream of autonomy, his yearning and long struggle for freedom, and submit without questioning to an all-powerful state. (3) There is democracy, expressing, reciprocally, trust in man and trust in the state. For democracy these are interlocking faiths in men's ability, through intelligence and self-discipline, to work together, making, directing, and abiding by a constitutional, liberal state. Thus the democratic state aims to guarantee both freedom and security in mutually, but inversely, varying degrees. T h e United States of America is nominated, with all its imperfections on its head, to denote the constitutional democracy. This is the republican state in its workaday functioning, which leaves so much to be desired, but does preserve to man his basic freedom, providing such a degree of security as in general is consonant therewith. We cannot go far wrong here if we take John Adams' definition. "Whenever I use the word republic with approbation, I mean a government in which the people have collectively, or by representation, an essential share in the sovereignty." 81 Marxian communism has never been able to stabilize it-

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self and endure. It was evidenced for a short and transient period in Russia after the revolution of 1 9 1 7 . Continuously, however, it lapsed into a shifting soviet confusion which, pressed by the threat of war in the middle 1930's, passed over into a totalitarian dictatorship under Stalin. As an allpowerful, one-party superstate ruled by a dictator, Russia cannot be classed as anything but totalitarian. T r u e , Marx himself, foresaw that strong power, despotic power, would be necessary to carry through the revolution for which he was issuing the call to action. But this "dictatorship of the proletariat," which was to be merely a transient phase, resembles not at all the present Russian state, which now is building to greater and greater imperialistic and despotic proportions. T h i s state, with its mounting force centered in dictatorial sovereignty, is buttressed within and without against any tendency to diminish. Thus, though it was purposed through the Second World War to destroy totalitarianism and the totalitarian state, and though in Germany, Italy, and Japan totalitarianism was defeated, Russia and her satellites supply the deficiency. Totalitarianism is on the increase, through Russia's reaching out and infiltration into other countries. Today the democratic liberal states, building, or having built, constitutional controls, form one camp; the U S S R and her satellites form another. T h e United States, England, and the freedomloving states of Western Europe are embattled against Russia in what has been called a "cold" war. However cold, it is important to remember that war it is; for "war consisteth not in battle only, or in the act of fighting, but in a tract of

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time" wherein misunderstanding, superstition, fear, acts and words of enmity, make the will to contend by battle perilously real. Though it has always been held that there is correlation between types of ethics and types of political theory, no very neat pattern of correspondence can be shown. It cannot be conclusively shown, for example, in a book of this length at any rate, that absolute ethics forms a better "ground" for communistic and totalitarian ideas than empirical ethics. Philosophers realize that in Germany the idealism of Hegel, which included an absolute ethic, did lend itself to the totalitarianism that grew up there. Whether it actually fed and nourished that totalitarianism cannot be known. Furthermore, Marx, though at odds with Hegel in many ways, in some ways was profoundly influenced by him. Especially was he influenced in the development of that dialectic which he termed "dialectical materialism." Relatedness can be shown between idealism, which would include absolute ethics, and both totalitarianism and the communism of Marx. But that relatedness is not here under consideration. It is enough for the purposes of this book to indicate that between empirical ethics and democracy there exists to a peculiar degree what is called in logic an "operational" correspondence. Furthermore, the concepts of empirical ethics are in all respects adequate to the concepts of democratic theory. What is meant by this? What is meant by asserting an "operational correspondence"? It is meant that "operationally," that is, as the two operate, the concepts of empirical

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ethics and the concepts of democracy run parallel, can be measured, each by the other. T h e physicist P. W. Bridgman thus elucidates the operational point of view. The new attitude toward a concept . . . we may illustrate by considering the concept of length: What do we mean by the length of an object? We evidently know what we mean by length if we can tell what the length of any and every object is. . . . T o find the length of any object, we have to perform certain physical operations. The concept of length is therefore fixed when the operations by which length is measured are fixed; that is, the concept of length involves as much as, and nothing more than, the set of operations by which length is determined. In general, we mean by any concept nothing more than a set of operations; the concept is synonymous with the corresponding set of operations In the operational sense, then, it may be seen that the concept of man, as that concept is held in empirical ethics, is adequate to the operations of democracy. Man is a creature who has not only an inner and to some degree unconscious drive to realize fully his potentialities but also a conscious desire to grow in this way. As he understands his desire towards self-realization, he sees that it has its best chance of success in a métier favorable to such growth. Such a métier he works up as a social order based on the principle of utility. He relates his growth and development, that is, to happiness, and especially to happiness in the large. T h e Greatest Happiness Principle of utilitarianism is his standard of measure. In working towards this very elusive and challenging goal, he finds it helpful to use, in judging progress, the method called pragmatic. He is not easily satisfied, this creature man, and he is not easily discouraged. Still, he

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does get discouraged by things that don't work, as he says. So he measures things, as he goes, by this pragmatic yardstick, checking his impatience against the knowledge his intelligence has won for him, that things sometimes can be made to work very well, even if they do not work right away. T h e democratic state is the social externalization, so to call it, of this whole unconscious and conscious ferment within the heart of man. Gregarious and social and political, loving to be free, man builds a state, the cornerstone of which is his inherent liking for his fellowman. Along with this inherent liking goes inherent faith, and a shrewd appraisal of his fellowman as a good sort, but a sort who "wants watching." So he sets up machinery for watching his fellowman through the ministrations of constitutional democracy and charges the state with the solemn duty both to keep him free and to hold him safe, insofar as this is possible. These two theories, the theory of man for empirical ethics and the theory of the democratic state, are concomitant. T h e concepts of one are germane and adequate to the operations subsumed within the other, and the operations proper to one find adequate expression in the concepts of the other. T h e two go together, democracy being the social expression of this view of man. It is thus that they are said to have an "operational correspondence."

II. Natural Law E have used the word "justice." There have been many definitions of justice. Indeed, their name is legion. T h e concept of justice is pertinent to any concept of the state. In the preceding chapter it was found that a realistic view of man, with all his imperfections on his head, yet striving with long-range patience to make good his potentialities and secure his happiness, jibed well with an un-ideal view of the state. Man, unless reduced to pitiable timidity, is seen to be a bit of an opportunist, perhaps, yet to be possessed of a certain self-respect which might be called dignity. With his self-respect he associates a fierce desire to be free. T h e kind of state which can use this concept of man with a minimum of displacement is the constitutional democracy, in which power and responsibility are not only distributed, but shared. This type of state can be, and in general is, held to the task of working from day to day to correlate freedom and security in a way conducive to the happiness of the majority of its citizens at that time. Thus, it is not far from being the state such a man as this would strive to bring about and then stabilize. Justice is essential to the well-being of such a democratic state. Where does justice come from, and what is it? This takes us back to the discussion of absolutes. For Plato and for thinkers of the idealist school justice is absolute and ideal. Justice, these thinkers say, is not something

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man contrives, but is part of the metaphysical order, part of the nature of reality. T h e obscurity of this statement will in some slight measure become clarified as this chapter proceeds. In its absolutely ideal form justice attracts m a n k i n d to seek it, to understand it, they say, and to bring it in a real way into society. It is a universal Idea, the same everywhere, the same always. It is not only a part of the metaphysical order; it is engraved also in the heart of man. As engraved in the heart of man, certain thinkers have called it a " h i g h e r law," or the "law of nature," or "natural law." It is asserted by those w h o think of justice in this way, as the universal expression of natural law, that natural law is the law of reason. T h e concept of natural law, taken thus, is very old in h u m a n affairs. It has waxed and waned and ebbed and flowed through more than twenty centuries. T o follow the course of this concept, as each age has interpreted it, is to lay hold u p o n the dominant attitude of that age towards man and his status in the world. It has even been cited recently in the conduct of the Nazi war trials. W h e n the law of nations (ius gentium),

the basis of international law, was

cited in the trials, it was recalled that H u g o Grotius, who gave the law of nations its classic definition, claimed that this law derived f r o m and depended on the law of nature, which is a " h i g h e r law." T h e law of nature [said Grotius] is a dictate of right reason which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is cither forbidden or enjoined by the author of nature, God. 1

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T h i s , which is the law of nature, he held to be the mother of the law of nations, even as "the mother of natural law is human nature itself."

2

It may seem that a vague lineage is being provided for an equivocal concept. Actually, the family tree is clear enough. T h e blurred features of the doctrine may result from the fact that (to pursue an absurdity) the law of nature is twins — b u t not identical twins. D o w n through the centuries the same sets of circumstances

in which the traditional law of

nature has been said to be operative could have received, and often did receive, diametrically different interpretations. Each set of circumstances is open to interpretation either as evidence of the compelling power of the law of nature or as an application of human arrangements drawn up to safeguard human values and protect human needs. B u t whether or not this "law of nature" is something within the human breast which directs us to act in conformity with universal justice, it has, in the past at least, played an important role in the growth of democracy. Is this role still "good"? O r is it played out? W h e r e democracy is, as here, under examination, this doctrine of natural law, along with the concept of justice, requires consideration. Aristotle—to take an early ad rem thinker—clearly and unmistakably distinguished two basic types of political control: conventional, enacted local justice, on the one hand, and on the other, "natural justice," or—as it was later called—the law of nature. But Aristotle's interest in "natural justice" was merely descriptive. Aristotle thought it enough to tell what he noted, taking it quite empirically, namely, that there was everywhere a fundamental agree-

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ment as to what, in a basic and minimal sense, constituted just law. T h i s fundamental constituent or legal core of justice had everywhere the same force, was universal, unchangeable, accepted by all peoples. In a cursory way Aristotle described these basic laws as: laws to protect life; laws to protect property rights; laws to assure an accused man of some sort of hearing before his accusers; and so forth. Later indeed, the Roman jurists, as alien peoples were subjugated, boundaries extended, and an empire built, found they must respect, and must grant to these stranger peoples, this modicum of law. lus gentium, they called it: the law of nations. Under no less favorable conditions could the conquered peoples be kept happy and be Romanized without too great pain. Such wisdom on the part of the Romans was, no doubt, in large measure responsible for that long-enduring peace called the Pax Romana. T h i s irreducible minimum of law, then, which was everywhere found to be the same, is what was originally meant by the term "natural justice," or "natural law." It waited for the Stoics to give this observed phenomenon a metaphysical twist, tying it in with human personality and human reason. T h e metaphysic of the Stoics was naturally hospitable to such a theory, since the Stoics' "one world" was conceived by them as animated by a rational principle which drew all men together into brotherhood. Cicero's words are famous, and though he was not a Stoic, sum up very well the Stoic's understanding of natural law. There is in fact a true law—namely right reason—which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the

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performance of their duties; by its prohibitions it restrains them from doing wrong. Its commands and prohibitions always influence good men, but are without effect upon the bad. T o invalidate this law of human legislation is never morally right, nor is it permissable ever to restrict its operation, and to annul it is impossible. Neither the Senate nor the people can absolve us from our obligation to obey this law, and it requires no Sextus Aelius to expound and interpret it. It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law, eternal and unchangeable, binding at all times and upon all peoples; and there will be, as it were, one common master and ruler of mankind, namely God, who is the author of this law, its interpreter, and its sponsor. The man who will not obey it will abandon his better self, and, in denying the true nature of a man, will thereby suffer the severest of penalties, though he has escaped all the other consequences which men call punishments. 3 Out of all the material of the philosophers' discussions, surely there comes nothing more valuable than the full realization that we are born for Justice, and that right is based, not upon man's opinions, but upon nature. This fact will immediately be plain if you once get a clear conception of man's fellowship and union with his fellow-men.4 It might be thought that Cicero is talking merely about conscience here. But, as he aligns the law he is defining with the impersonal challenge of justice, rooting it in nature, it seems clear that he means something more social and less personal than the still, small voice. It will be very clear, as we proceed, that later natural law thinkers mean something much more akin to law than to conscience. N o special astuteness is required to notice a startling swing from the factual observation of Aristotle to Cicero's almost mystical, or at least profoundly rationalistic, turn of

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thought. Indeed, Cicero's interpretation of natural law as something to be derived from man's nature alone goes as far as anyone has ever g o n e — b u t no farther than many others have g o n e — i n alleging for this law a special, indubitable authority. Aristotle had been aware that certain persons interpreted "natural justice" in this way. "Some think that all justice is of this sort, because that which is by nature is unchallengeable, and has everywhere the same force (as fire burns both here and in Persia), while they see change in things recognized as just. T h i s , however, is not true in this unqualified way, but is true in a sense."

8

Aristotle, rather obviously

tongue-in-cheek, again refers to this in Rhetoric,

as he lists,

with a shrewdness which has never been wanting to forensic oratory, what he calls " t h e non-technical means of persuasion," so helpful in w i n n i n g the lawsuit. Let us take laws, and show how they are to be used in persuasion and dissuasion, in accusation and defense. If the written law tells against our case, clearly we must appeal to the universal law, and insist on its greater equity and justice. . . . W e must urge that the principles of equity are changeless, and that the universal law does not change, either, for it is the law of nature, whereas written laws often do change.6 Here Aristotle is discussing the rhetoric of the courts. H e has sounded the note of caveat emptor. H e prompts to agility and even speciousness in argument—anything to get the verdict. H e goes on to analyze, with almost alarming guile, the emotions of the court and the way the pleader may play upon them for his own purposes, showing how anger may be induced, fear, pity, and the like, how by mellifluous cun-

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ning confidence may be inspired in the orator's own character, and the matter at stake be presented with all the tricks of the trade "that induce us to believe a thing apart from any proof of it." 7 We are now on highly controversial ground. It will be well to give at this point, as well as we are able, an impartial definition of the term natural law taken in a Ciceronian sense. The term natural law is defined as that self-evident law which, being grounded in an abstract-universal "nature" of things, including man and society, remains essentially—that is to say as to its very foundation and justification—independent of convention or tradition; of legislation or legal action; and of historically developed social institutions or ideologies—a law therefore, the very foundation of which is in reason or "nature," and which is valid for all times or all places.8 Though this definition turns out to be more in the nature of a series of comments on traditional natural law than a precise definition of it, it serves our purpose admirably. These are its features: it is self-evident, to be inferred byreason alone from the nature of the universe and from the rational nature of man, which meet in the concept of Justice; it is irrefragable and irrevocable, transcends experience, needs no empirical verification from history, and recoils from the historical approach; its instances and applications are literally inexhaustible; it is rooted in either religion or logical a priori; it is everywhere and at all times valid. These seem to me to be the very revealing characteristics of what has traditionally been called, certainly since Cicero, natural law. In view of the paramount place this doctrine has had in

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historical and philosophical attempts to evaluate motives and to isolate causes, its most astonishing feature has been its complete absence of unequivocal definition. Especially is this true where most has been claimed for it. T h u s , a congeries of assumed absolutes has emerged, d e f y i n g checks, examination, exact definition, criticism, proof or disproof, and above all any rationally legitimate usability. Furthermore, the consistent natural law thinker usually,

though

not in every instance, interprets positive, or legally enacted law, as merely a mode in which natural law is empirically evidenced. H e holds that natural law is the valid criterion in terms of which the justice of the positive law can be assayed. H e sees natural law as the source and corrective of positive law. It takes courage and erudition to formulate generalizations like those which follow. It is much more comfortable to quote and heartily endorse the quotation. " I t might be said, that in its long history, Natural L a w has, at different times, assumed and relinquished practically every and any philosophical standpoint." • "Natural Law" does not designate a single philosophic doctrine: it receives different definitions and developments in the philosophies of Aquinas, Hobbes, and Locke, to mention only three of the natural law philosophers; and in the controversies concerning the relation of church and state in the Middle Ages, the doctrine of natural law was employed to defend opposed positions of papalists, imperialists, and conciliarists. 10 In A m e r i c a n history both the Antifederalists and the Federalists, in the fight over ratification of the Federal constitution, used the validity of the rights of man, which they de-

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rived from natural law, to bolster, each group, its own position. T h e Antifederalists cited it against ratification; the Federalists in support of ratification. We may have serious doubts about the sincerity with which certain of them [the Federalists] used the concept, but, from the point of view of strict natural law argument, theirs is the more logical of the two. For, when the Anti-Federalists contended that there are certain rights of man which are natural and inalienable [and which should be listed as a bill of rights in the proposed constitution, and were not], the Federalists had but to reply that they were heartily convinced of the truth of such doctrine and that they believed such rights to be so natural and so inalienable that provision for their recognition in manmade constitutions would be superfluous. . . . It is easy enough to say that natural law has meant just what the individual theorist desired it to mean; for its content has varied from philosophical anarchy to paternalistic aristocracy, and from the assertion of strongly individualistic democracy to the defence of highly centralized government. 11 In the years that led up to our Civil War the doctrine was appropriated both by the slaveholders and the Abolitionists. In justification of their revolt against the established régime, die abolitionists naturally turned . . . from the positive law to a "higher law." They would defend, not the legal rights of American citizens, but the sacred and inalienable rights of all men. . . . But slave owners, as well as abolitionists, needed a higher law. . . . They could adequately meet the abolitionists, who affirmed that slavery was a flagrant breach of the "laws of nature and of nature's God," by proving that, on the contrary, slavery was in tune with the cosmic harmonies. . . . Continental writers had already achieved this essential task; and it was Thomas Dew, fresh from German universities, who showed die South that natural law, properly conceived, might still be

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made the sure foundation of African slavery. Nature, he argued, is clearly the work of God, and man is the product of nature—it is "the nature of man to be almost entirely the creature of circumstances."—And so, sure enough, it turned out, upon an unprejudiced examination of history, that human progress, in every stage of development, had been possible only because superior men gained leisure and opportunity by subjugating their inferiors. Thus God and Nature had decreed slavery as the price of civilization.12 Still and all, out of this long history of ambiguity and misappropriation, it seems to me, two very different interpretations, each quite exhaustive, may readily be traced of this, which both "sides" are apt to call "natural law." T h e two are well exemplified by the diametrically opposed methods of approach of Aristotle and Cicero. Cicero's interpretation, though frequently called in question, has at least held its own with Aristotle's down through the ages. Fundamentally, both men express the same idea, namely, that there are essential human rights. It is a fact that throughout history declarations of human rights, as they have been enunciated, vary surprisingly little. But Aristotle and Cicero trace these patterns of human rights differently, and explain them differently. In Aristotle, facts are empirically noted and described. In Cicero, an idea is deductively drawn from the supposed nature of the universe and the supposed nature of man, and cited as "a true law—namely right reason." In Aristotle, the roots of the concept would lie in human needs: similar human interests and similar human needs had led mankind everywhere to work out these strikingly similar basic controls. In Cicero the roots of the concept have a sublimity of their own, and

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an origin in the essential nature of man as God created him. Aristotle suggests that the law of nature is the practical devices of man. Cicero sees it as God-given, God-sponsored, God-guaranteed. Throughout the history of natural law these two roots can be traced, each affirmed or denied less according to the political creed of the writer than according to the "shape of his head." William James would have called those thinkers the "tough-minded" and practical who interpret the law as having been won in the long struggle for freedom. They see it as having been, by blood, sweat, and tears, established that there is a changing minimum of human liberty, which can be called, if so desired, the law of nature. Lose that, and man will feel himself called upon to fight. They see it, on a wide scale, as summing up all the liberties man has won —with a history not so different from the winning of the minimum wage, for example. They can see no more reason to interpret natural law as inherent in human nature or as "a doctrine that would invest man's sense of himself with moral stability" than so to interpret other human manifestations the Roman conquerors must also have observed: man made tools to the limit of his ingenuity; man tilled the soil when soil and weather permitted; man, unless he had outgrown his childishness, inclined to endow the things of nature with their own deities, which he then tried to win over to his side by fetich worship of various kinds. T h e more "rationalistically" minded interpret the law as "standing to reason." They can see no lesser source for it than divinity itself glowing in man's heart as love of absolute justice. Not always have they interpreted the law as

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religious in origin, carrying a religious sanction. But the religious interpretation has been more usual, among such thinkers, than the purely rationalistic, and has often been called in to strengthen the latter. The two interpretations, the law of nature as a human construct and the law of nature as a divine decree, flash out and dominate the thought of one age or another like the two aspects of a figure-ground diagram in psychology. It seems that neither one can take firm hold upon human thinking to the exclusion of the other. It can be asserted that the metaphysical and rationalistic view has had the better of it, perhaps because the upholders of this view have been, on the whole, more vocal. But, as I have said, there has been opposition, too, which historians would agree came to its sharpest and most deadly focus in Hume. "Having found that natural, as well as civil, justice derives its origin from human conventions, we shall quickly perceive how fruitless it is to resolve the one into the other, and seek in the laws of nature a stronger foundation for our political duties than interest and human conventions, while these laws (the laws of nature) themselves are built on the very same foundation." 13 In these words Hume consigned the traditional law of nature to the flames. But, like other metaphysical or religious dogmas which Hume consigned to the flames, this, too, has refused to stay consigned, but has wriggled out and, like the phoenix rising from its ashes, stalks abroad, in some quarters as undefeated as causality. The most important contemporary phoenix is indubitably a little book, The Rights of Man and, Natural Law, by Jacques Maritain. Before considering this volume, how-

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ever, I should like to give more variously significant instances of natural law interpretation, as they have occurred in history. This is not to be understood as a promise or a threat that the history of natural law is now to be given. There would be no end to making many books about that. There is no such intention here, but merely a plan to examine certain formulations of this concept which are germane to the subject of this chapter. T h e metaphysical interpretation endured and was intensified throughout the Middle Ages. It was taken over by the church and was labored for more than two centuries in many an argument on the subject of man's freedom. Thomas Aquinas and Augustine before him distinguished the eternal and divine laws as written into the very nature of the universe. Thomas, in the Summa theologica, found law to be of four kinds. Natural law, communicated by God to man and discoverable by unaided human reason, he found to be a reflection in man's nature of the eternal reason of God. Thomas considered promulgation an essential characteristic of law. Therefore, he showed how the law of nature, produced by unaided human reason, from which human law derived, was inexorably promulgated in the mind of man, "by the very fact that God instilled it into man's mind so as to be known by him naturally." 14 T h e four kinds of law, then, were: (1) Eternal Law, the Justice of God, which is almost identical with His reason; (2) Natural Law or the Eternal Law implanted in man's mind; (3) Divine Law, God's overt revelation of His will to mankind, particularly in the Scriptures, not at variance with man's reason, which is in tune with justice, but more in the nature of a

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free gift of God's grace; (4) Human Law, which Thomas divided into ius gentium and ius civile, and held to be a derivative from Natural Law. T o Grotius, whose genius formulated an accepted law of nations, belongs the credit of separating natural law from its dependence on theological authority, instating it in the shrine of rationalism rather than, necessarily, in the shrine of religion. For Grotius set forth this law as self-evident in the same sense that the truths of mathematics were held to be self-evident: the truths of mathematics would remain in force even if God could be conceived as nonexistent. So also would the law of nature. "Just as even God, then, cannot cause that two and two should not make four, so He cannot cause that that which is intrinsically evil be not evil," 15 Notice should be taken here in passing of Grotius' introduction of the concept of value as intrinsic, rather than mediated in terms of empirical results: "intrinsically evil," he says. Some such idea as this is always relevant to the ethics of rationalism. "What we have said," he continues, "would still be in point even if we should grant, what we cannot grant without great wickedness, that there is no God, or that He bestows no regard upon human affairs." 18 But note that Grotius is by no means unambiguous in his derivation and treatment of natural law. Forgetting for the moment its self-evidence, he gives as its source an altogether utilitarian norm, "man's concern for society," and adds still a third origin "besides that natural source of which we have spoken: it is the free will of God." "Natural law may yet be rightfully ascribed to God, though it proceed from the principles of man's inner nature; for it was in accordance with

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His will that such principles came to exist within us." 17 Grotius is logically and semantically confused here, ls as he mingles self-evidence, utility, and the will of God. But he does minimize the religious motif and dispense with any rigorous necessity for a religious sanction. Richard Hooker's Laws of Ecclesiastical Polity was published in England some years before the De jure belli ac pacis was published by Grotius in 1625 in Paris. Hooker followed Thomas Aquinas in distinguishing various types of law: eternal law, or the law of God's own reason, natural law, and the law of human reason. He adds that "nature itself teacheth laws and statutes to live by. T h e laws which have been hitherto mentioned do bind men absolutely even as they are men, although they have never . . . any solemn agreement among themselves what to do or not to do." Locke reached back across the years, across more than a century, to quote this passage from "the judicious Hooker." 19 He is in Hooker's debt for his natural law concept. Yet he is not entitled to it: affirming it is Locke's major inconsistency. In the First Book of his Essay he denied that there were innate principles in the mind. But the law of nature was conceived as exactly that, and Locke made no effort to legitimize it or to give it a derivation in keeping with the tenets of his philosophy. " T h e two ways of sensation and reflection" is altogether inadequate. From Locke, illegitimately or not, the principle of natural law as binding on lawmakers was handed down to Tom Paine and the Founding Fathers of our American constitutional democracy. This will be discussed in Chapter III. T h e natural law doctrine, in its metaphysical expression,

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has had almost incredible vitality, and continues to have. Enshrined and elevated by scholasticism, and by scholasticism divorced from its connection with the physical universe of the Stoics, it has been carried on in much Catholic and some Protestant teaching down to the present day. Besides certain religious thinkers, we still have pronounced neo-Kantians in Germany and other countries, with their undying love for the a priori: these never tire of the law of nature. The thought of the early part of the eighteenth century in Europe and Britain, and in America as well, was uniquely congenial to natural law doctrines. The "state of nature" theory of society and the "contract theory of the state" had risen with force, establishing themselves at the heart of all political philosophical discussion; and the law of nature, as source of positive law, grounded itself on these. In its most halcyon expression the "state of nature" theory goes back to ancient times. Plato, in Laws, pictures a long past era when men lived separate and somewhat mobile lives as herdsmen and socially irresponsible tillers of the soil, an era of plenty in which they had no need of government or any social structure for stabilization and defense. It seemed to Plato, to Seneca after him, and to many social inquirers in later times that those must have been the days when man was at his freest and most generous best. Hobbes, who was not a "natural law man," had viewed the advance from state of nature to statecraft as man giving hostages to fortune, relinquishing his freedoms which even in the halcyon days Hobbes thought beset with perils in the "war of every man against every man." "A perpetual and

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restless desire of power after power, that ceaseth only in death," 20 Hobbes saw driving both aggressor and aggrieved to seek protection from the rising cupidity and encroachments of their fellows. L i f e in cities became more congested than it had been in the green open places. One man's carefully garnered and developed property became a prey to the greed of his neighbors as they drew closer for barter, for picking and stealing, for plunder, and for defense. T h u s arose the "contract theory of the state," touched on in Chapter I: Hobbes' concept of the state as man's concession to his fear of the rapacity of his kind, a bulwark set up by conscious exchange of liberty for government's "coercive power" under which he might be safe. Like Hooker before him, however, Locke took the more genial, Aristotelian view of society. Locke held that the state of nature, by way of the law of nature, had led very naturally to the state. Men's gregariousness and political instinct had tended to draw them together into social units for enjoyment and mutual assistance. T h e law of nature had guided them in this social building. Thus, in effect, the state of nature theory and the contract theory of the state came to be related aspects of the same idea. Natural law was seen as having led man out of the state of nature into society under government. That there is a "natural order" of things in the world, cleverly and expertly designed by God for the guidance of mankind; that the "laws" of this natural order may be discovered by human reason; that these laws so discovered furnish a reliable and immutable standard for testing the ideas, the conduct, and the institutions of men—these were the accepted premises, the

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preconceptions, of most eighteenth century thinking, not only in America, but also in England and France.21 Yet, at the end of the seventeenth century Hobbes had stood enunciating the state of nature theory and the contract theory of the state with incisive clarity, but reducing the splendiferous law of nature to nothing higher than the conditions of peace. There can, therefore, be no other law of nature than reason, nor no other precepts of natural law than those which declare unto us the ways of peace, where the same may be obtained, and of defence where it may not. . . . When divers men have right not only to all things else, but to one another's persons if they use the same, there ariseth thereby invasion on the one part, and resistance on the other, which is war, and therefore contrary to the law of nature, the sum whereof consisteth in making peace.22 Hobbes then, as Aristotle had done, goes on to show how the law of nature ramified out into certain basic arrangements upon which a just peace could be built, such as: the sacredness of contracts, reasonable reliability and cooperation among men, reciprocal defense, charity, forgiveness within practical limits, mutual respect, fair trade arrangements, protection of women, honest care of common property, arbitration of disputes, everyone minding his own business, consideration for the feelings of others, the Golden Rule, and so forth. " T h e sum of virtue is to be sociable with them that will be sociable, and formidable with them that will not. And the same is the sum of the law of nature; for in being sociable the law of nature taketh place by the way of peace and society; and to be formidable

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is the law of nature in war." 23 Thus Hobbes hit the traditional, rationalistic concept a heavy blow. Indeed, it is difficult to see how, having been hit so hard and brought so low, the law of nature could ever get up again. But this concept, as we have seen, appears to be almost indefatigable. Hobbes died in 1679, and the dawn of the century that followed was, as has been suggested, the high tide of natural law. David Hume, to take him now in his historical place, lived through most of the years of the eighteenth century. He demolished the law of nature, as I have shown, with skeptical vigor and thoroughness, setting down all its claims as merely "human conventions." The implications of his argument were not, at the time of their utterance, fully seen, perhaps.24 But gradually they took effect, and it was a somewhat "punch drunk" natural law doctrine which managed to reel on into the nineteenth century. Rousseau, who saw man as moral only by means of being social first, took up the cudgels against it all over again. Diderot, on the contrary, seeing man as primarily and essentially rational, recoiling from Rousseau's emphasis on feeling, declared for natural law as the one essentially human and rational voice. For the purposes of this book, it is Jeremy Bentham's response to Hume's teaching on this subject which is particularly significant. In an acid diatribe called by Bentham A Fragment on Government, directed against Blackstone's Commentaries, Bentham, acknowledging his debt to Hume, attacks directly Blackstone's concept of "the pretended law of Nature."

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"Nay," [he quotes Blackstone as saying] "if any human law should allow or enjoin us to commit it" [that is, contradiction of the law of nature] we are bound to transgress that human law, or else we must offend both the natural and the divine." . . . As to the Law of Nature [Bentham counters with scathing dislike of such equivocation], if (as I trust will appear) it be nothing but a phrase . . . I see no remedy but that the natural tendency of such doctrine is to impel a man, by the force of conscience, to rise up in arms against any law whatever that he happens not to like. What sort of government it is that can consist with such a disposition, I must leave to our author [Blackstone] to inform us. [Bentham then, in the name of utility as the only meaningful standard and guage of legislation and of justice, directly and openly sets utility against the vagueness of natural law.] It is the principle of utility [he says] accurately apprehended and steadily applied, that affords the only clue to guide a man through these straits. It is for that, if any, and for that alone, to furnish a decision which neither party shall dare in theory to disavow. It is something to reconcile men even in theory. They are, at least, something nearer to an effectual union, than when at variance as well in respect of theory as of practice.25 A few pages later Bentham makes the vital point referred to in Chapter I above. H e indicates the crucial relevance to the social criterion, utility, of historical study, "the evidence of such past matters of fact as appear to be analogous." Emphasizing again the importance of reconciling, at least in theory, opposed viewpoints, he says, in a mood of social hope induced by clarity of mind: " M e n , let them but once clearly understand one another, will not be long ere they agree. I t is the perplexity of ambiguous and sophistical discourse that, while it distracts and eludes the apprehension, stimulates and inflames the passions."

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I have indicated the amazing imbalance between the lack of adequate definition of the term natural law and its sweeping and compulsive application where precision of meaning before all else would appear to be important. T h e r e is another almost equally surprising feature which ties in with this: an irresponsible pointing out of "instances" of natural law theory. "Instances" are cited not only by traditional natural law thinkers, but also by those who are quite listless about the whole matter. No one seems to have taken the trouble to probe the question with ruthless thoroughness, analyze it "from the ground up," and make a report that will convince, one way or another. It is not enough that Hobbes, a sophisticated examiner, should have called natural law merely the conditions of peace. It is not enough that Hume, a seasoned and inexorable "debunker," should have called it merely a human convention. I should like to test the validity of the self-evidence of natural law—metaphysically grounded, as maintained, and riding high above human controls. 26 I should like to examine this traditional natural law for unequivocal meaning in terms of genus and differe7itia. Let us see whether it has such unequivocal meaning, and, if it has, let us find this "law" in nature or in effective existence if we can. "But, why bother?" it may be asked. "Surely, there could be no better spot for uncontrolled laissez-faire to be turned out to romp than in these very pasturesl" My own view is diametrically opposed to this attitude. T o me it seems of the utmost importance that this concept be subjected to a thoroughgoing appraisal and that this inquiry be prosecuted till the last dog is hung. Here are the questions we must

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meet and answer. Has the term natural law, taken as "appertaining to the essence of man," any clear meaning, any referent? If it has, where is the referent to be found? What is its social significance? For natural law does purport to have social significance. Unless and until we know these things about it, we have, dancing through the complexities of history, now here, now there, now anywhere, an elusive ignis fatuus of explanations that do not explain. As long as apparently responsible thinkers feel themselves at liberty to make a vague gesture towards almost any human crisis and say, " T h e law of nature covers this," just so long is the way befogged, the issue compromised, and a just solution made next to impossible. A n explanation which is accepted, when it does not explain, is a rabbit's foot drawn across a trail which might lead on to a true and fruitful solution. Natural law is cited again and again, when there is no validity whatever in its citation. Especially is it fashionable nowadays to point to it in ancient history. T h e reason is not hard to find. A convinced natural law thinker, holding that the natural law was clearly promulgated by God in the minds of men, is at pains to show that men know about this promulgation. H e is not satisfied with Aristotle and Cicero. He must point to the natural law in the Hebrew prophets and in the Analects of Confucius; in Greek tragedies, other than the Antigone of Sophocles, where the argument is more persuasive; in the pre-Socratics; in Plato. W e may content ourselves with examining here two of these instances, one ancient and one modern, in order to see how flimsy they are, " T h e distinction between natural law, which is universal

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and divine, and positive law, which is local and human, is attributed to Hippias by Plato in the Protagoras." 21 Checking this reference, we find that the only speech in the Protagoras which comes anywhere near the prescription is this. Hippias the sage spoke next. He said: "All of you who are here present I reckon to be kinsmen and friends and fellow citizens, by nature and not by law; for by nature like is akin to like, whereas law is the tyrant of mankind, and often compells us to do many things which are against nature." Clearly Hippias means no more here than that law compels men to do what they would prefer not to do—which is, after all, the necessity for law and the purpose of law. A group hailed together by law would not be very "sympatica." There is nothing transcendental about this, nothing that reason deduces from the essence of man. Yet the quotation given above, from C. G. Haines, is not the only place where Plato, by reason of this passage from the Protagoras, is classed with writers who give expression to the traditional law of nature. This is typical of those who would point to natural law now here, now there, now anywhere. Haines is not saying this with conviction, from his own observation: he is reporting it from the observations of others. Take now the following quotations, designating a more modern obtrusion of natural law. "Let me quote . . . the words of Burke: 'The poorest being that crawls on the earth contending to save himself from injustice is an object respectable in the eyes of God and man.' This introduces the concept of natural law." 29 This short passage is taken from the article, "Natural Law

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and International Law," by Lord Wright, LL.D., Lord of Appeal in Ordinary, who acted as chairman of the United Nations W a r Crimes Commission. In reply, it seems important to ask, WHY does Burke's quoted remark introduce the concept of natural law, especially in view of the fact that Burke, himself, did not subscribe to natural law doctrines? "Far more than Hume he reversed the scheme of values implied by the system of natural law." 29 For Burke it was "custom, tradition, and membership in a society, more than reason, that gives moral quality to human nature." " W e are afraid to put men to live and trade each on his own private stock of reason," Burke wrote, "because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and ages." 80 Burke's remark about "the poorest being that crawls on the earth" might be taken as introducing almost any concept, it seems to me, except the concept of natural law. Lord Wright then goes on to make reference to Sophocles' play, Antigone. It is interesting to recall that it is Aristotle who first relates to the subject of "natural law" the incident given by Sophocles. Since Aristotle it has been repeated in very many discussions of natural law, down to the present day. Recently it has been cited by Jacques Maritain in The Rights of Man and Natural Law, mentioned above. Aristotle, discussing in the Rhetoric the relation between the written laws and the universal law and the way this may be turned to account by a skilled rhetorician, speaks of "the bearing of the lines in Sophocles' Antigone." Antigone is

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pleading that in burying her brother in defiance o£ the king she had broken Creon's law, but not the "unwritten and unfailing statutes of heaven." Not of today or yesterday they are, But live eternal—none can date their birth. Not I would fear the wrath of any man, (And brave Gods' vengeance) for defying these." W e shall return to this incident later. Suffice it to say here that Lord Wright, with the passage from Sophocles in mind, continues thus: " T h i s is somewhat transcendental

and

mystical, but the law of nature has always appeared to men as something high and awful, above and behind the majesty of the positive law." N o w it is time to turn to some more nearly contemporary expressions of this "something high and a w f u l " which certain writers of today still call the law of nature. T h e s e writers will be found to be, in general, of two kinds: (a) neo-Kantians, and (b) certain present-day metaphysicians and theologians, especially, perhaps, T h o m i s t i c

philos-

ophers of the Roman Catholic Church. It will be sufficient for our purposes to consider three as typical: Giorgio del Vecchio, an Italian jurist and professor of philosophy at various Italian universities, born in Bologna in 1878, a thoroughgoing neo-Kantian; Professor R u d o l p h Stammler, a German jural philosopher, of the twentieth century, also a neo-Kantian, more analytical, less typically neo-Kantian than del Vecchio; and, for the theologians, Jacques Maritain. N o one of these questions the high awfulness and rationalistic transcendence of natural law, though the three differ in their attitudes and in their views. A l l three are

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tinged with that love of paradox so dear to the neo-Kantian, and not displeasing to the Thomists, that tendency to a credo ut intelligam, which pulls up the empirical mind with a strong yank. Del Vecchio calls the natural law "essential to human nature" and "essentially transcendent, grasped by the mind a priori as an absolute and universal necessity, superior and anterior to any application of experience." It is a "worldwide, human law" for del Vecchio, or "a juridical co-ordination of all mankind (first dreamt of by the Stoics) . . . whose principles are predetermined and implied in nature, so that reason can deduce them a priori and recognize their validity before they are verified a posteriori . . . and independently of this verification." 32 It can be seen that del Vecchio tacitly lines up with the Stoics in their view of natural law; in fact, he explicitly denies Aristotle's contention "that natural law is the law common to different peoples." If he would allow himself to think simply for a moment, however, del Vecchio would not be very far from Aristotle's meaning in an altogether different context, when Aristotle said that "the state is prior to the individual." Del Vecchio shows this when he criticizes adversely Hobbes' assumption: that man's formulation of law could come about only when, by an act of repudiation, he had put the "state of nature" behind him, driven to social relations out of fear of his fellows. What, therefore gives according to Hobbes (here directly opposed to Aristotle) [del Vecchio says] the most faithful portrayal of human nature is the least developed state of man, with the fewest relations. When he desires to show man, he turns to

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savages and even to children. . . . Hobbes, in fact, finding man nowhere entirely abandoned to himself, without education or restraint, tried to obtain an idea of him by mentally dissolving society. [This was the "state of nature."] Human nature in his mind is finished, or modified accidentally, when human society or history begins. . . . It was his belief that man by nature loves nothing but himself, and that there is nothing in his nature which attempts to correct or overcome this egoism.33 Here, del Vecchio, as he repudiates Hobbes, does very definitely support one of Aristotle's contentions. T h i s is a position, however, since it revolves about an a priori, which makes the mind susceptible to an expanding transcendentalism, preening itself at the expense of scientific knowledge and historical fact. Aristotle resisted this tendency through his strongly empirical bias. But del Vecchio falls a prey to it, lured on by the "new criticism" of Kant. Critical idealism is the only system which can give, by the criteria which we have shown, a congruous and wholly adequate solution of this problem. . . . The true nature of man implies an element of transcendentalism, a faculty which cannot be suppressed, and which is consequently inalienable, to dominate the order of phenomena and to find in itself its own determination, in a word, to affirm the autonomy of the human being.34 Why this helps, or what it accomplishes, del Vecchio does not say. He does suggest, however, that these conclusions were precipitated in him by the too-empirical method of certain thinkers who overemphasized the variability of law,25 tending thereby to reduce its majesty. A l l natural law thinkers recoil from the historical approach, hating most particularly what they call "historicism," what has

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been called in Germany "die historische Schule," with positivistic predisposition towards a belief in the paramount importance of cultures. Del Vecchio attacks this predisposition. Natural law exists, therefore, as a system of the highest truths, not sensible, but rational, and is, then, independent of the existence of common institutions in all nations, and apparent disagreements with reality. . . . The idea of natural law, which has withstood the attacks of sceptics and positivists in past times, will resist those of modern positivists, and will guide humanity in the future.®8 T h e ultimately historical attitude, which has been called "historicism," del Vecchio alludes to as "the defective systematizations of that chaotic collection of facts and conjectures which constitutes so-called sociology and which is the sign of an ailment in contemporary civilization." 87 Anton-Hermann Chroust, whose article " T h e Nature of Natural Law" was quoted above, has this to say on the subject. The "absolute historicism" of the "Historical School" reveals itself, however, to be a most distinctive opponent to any creative philosophy operating with value concepts and postulates. In its attempt to level all values, to absorb entirely the "just law" by the "developed law," to substitute for the notion and function of value the idea of organic, "natural" growth, the Historical School occasions a dangerous mental inactivity with regard to every legal or philosophical problem. Such indiscriminate reverence for all that exists by virtue of its historical growth or evolution implies, in the final analysis, a relativism devoid of all intellectual or moral standards or criteria.38 Writing on natural law, Laurence Stapleton defines his-

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toricism as a " m o v e m e n t c o u n t e r to the law of nature and opposed to it." Chiefly [she says] it consists in the belief that each people is so conditioned by its historical development as to be inherently different from the people of other nations, and hence unable to share with them common experience and common ideals. Regarding even injustice as an inevitable product of historical development, and denying to the individual any significance apart from his membership in a group, the complex of ideas that is here called "historicism" simultaneously cuts away the foundation of moral responsibility and makes impossible the world-wide sharing of an ideal of brotherhood. 39 R e c o g n i z i n g i n b o t h these definitions a p r e j u d i c e against so-called "historicism" as b e i n g an intellectual climate unhealthy f o r transcendental natural law doctrines, I give the definitions here for that very reason. T h e matter is prej u d g e d , it is true; b u t the conflict is clear. D e l Vecchio's summary of the way in w h i c h the idea of natural law came a b o u t follows the classical

historical

account. It is not without deep-seated reason that in all ages and countries the idea of natural law, that is, one founded on the very reality of things, and not on the simple placet of the legislature, has been cultivated. This conclusion is reached in various and opposite ways: (1) by observing certain rules of law which exist in widely separated countries, (2) as well as seeing the need of overcoming the caprice and irrationality of rulers and judges, (3) through recourse to a system of unwritten truths. This law has shown its authority in various ways. It has been upheld as the will of God; it has been deduced analytically from pure reason, and considered as a reflex or result of physical laws. . . . These partial divergencies in doctrine (common to all branches

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of philosophy) should not prevent the recognition of the deepseated unity of the conception, containing all the characteristics of a psychological necessity, which is not disproved, but confirmed, by the number of ways in which the concept itself is reached and by the number of demonstrations given of it.40 It is strange that del Vecchio does not see, in his own recapitulation, the deep-seated duality which has been pointed out in this chapter, rather than the deep-seated unity he claims for his concept. There are twin ways of thought here—"but not identical twins," as I said. Coming to this fork in the road, even if he does not recognize it as such, del Vecchio chooses the only branch a neo-Kantian could choose. It should be noted here that del Vecchio definitely denies that natural law looks to positive law to express it positively. Natural law, though close to absolute justice, constitutes one of the varieties of law and does not eliminate variety, nor include the whole of law. A system of natural law is, in the last analysis, only a system of law. Logically, it joins and completes the others, being a law whose only pretense is to act as a criterion over phenomena," or positive legislation. Natural law, that is, for del Vecchio is an "ideal rule of law," and not either "the synthesis of all existing law" or the source, or ground, of positive law. Natural law is unchanging and unconditioned, except as the essential nature of man has conditioned it, once and for all. Positive law is conditioned by many social and cultural factors, as well as by its own spontaneity, which causes it to vary with conditions. . . . The affirmation and observance of law is positive . . . its principle is metaphysi-

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cal. The eternal seed of justice, the foundation of its idea, is not furnished by nature considered as the complexity or succession of empirical facts, but by the essence (or nature) of man, which comprehends and transcends other nature, and is itself autonomous, and hence susceptive of rights and duties. . . . The principle of law . . . is deducible a priori from human nature.41 It is heavy punishment for an American or an Englishman to read this kind of thing, even more turgid in its theory than in its style. I will not attempt, at this point in my discussion, to take it apart to see what, if anything other than Kant, makes it "tick" nor apologize for giving it, further than to quote Charles G. Haines, whose book The Revival of Natural Law Concepts is a well-spring of information and clear analysis. It is difficult for one trained in Anglo-American legal ideas and traditions to appreciate or understand del Vecchio. But it is a point of view through which alone much of the legal thinking of Continental European nations becomes intelligible. Though the traditionalist or metaphysical approaches to an understanding of the law have had little vogue in England and in America, these European legal systems have been far from free from metaphysical or transcendental legal notions. . . . A summary of some of the views of a few representatives of this school may suggest the characteristics of the higher law philosophy in its religious and metaphysical garbs.42 Turning now to Stammler, we find that he differs from del Vecchio on the relation of natural law to positive law, holding that the purpose of the law of nature is to become positive law. . . . Natural law has a different kind of validity from mere positive law. The former claims to be a standard, the latter a compulsory

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rule. . . . This is no reason for doubting that the two systems can both be called law. But one system is foundation, or ground, the other superstructure, or derivative.43 For Stammler they are not, as they were for del Vecchio, two related varieties, or systems, of law. Both philosophers to some degree, however, use natural law as a criterion by which to judge the value of legal enactments. Stammler is more critical than del Vecchio, not quite so "new critical" or Kantian, and more original. For this reason it is easier to understand Stammler in terms of del Vecchio than del Vecchio in terms of Stammler. Stammler places emphasis, not on the law of nature primarily, but on the object of his quest, which is to find an answer to the questions: What constitutes just law—das richtiges Recht? What standard must law conform to in order to qualify as "just"? Imbued with Kant and Hegel, Stammler seems to feel that he must have something "pure" or "objective" in the Kantian sense, something a priori, for this highest "court of last resort." Any such touchstone as utility or practicality would simply "not do." Nor would the traditional law of nature, deduced from the nature of man, for the reason that the traditional law of nature, as Stammler admits, cannot be thought of as "unconditioned," nor held to be "unchanging." The various theories of the law of nature all undertake by their own method of argument to outline an ideal legal code whose content shall be unchangeable and absolutely valid. Our purpose, on the other hand, is to find merely a universally valid formal method, by means of which the necessarily changing,

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empirically conditioned legal rules may be so worked out, judged, and determined, that it shall have the quality of objective justice. T h e attempt of the law of nature was foredoomed to failure. For the content of the law has to do with the regulation of human life, which aims to satisfy human wants. But everything that has reference to human wants and to the manner of satisfying them is merely empirical and subject to change. There is not a single rule of law whose positive content can be fixed a priori. . . It was in fact a mistake in method to bring in the nature of man in working out the problems of the law of nature. It is impossible to prove that man has definite native qualities for social life and certain a priori impulses guiding his conduct in such life. (See Wirtschaft und Recht, section 32.) . . . T h e r e are no innate rights of the individual which he brings with him and which, along with the natural existence of man, belong to him as part of his very nature—rights which, upon his entrance into the sphere of law, he contributes to the common fund as an inviolable good, "inalienable and irrefragable as the stars." T h e r e is, indeed, a limit to the power of the tyrant, and to the objective right of a legal sovereign, no matter who he be, a single individual, a number of individuals, or "the people." B u t this limiting power of just law can never be derived and determined from the nature of man, but only from the idea of a legally ordered life in general. T h e r e can be no law of nature in the former sense of the word, but there may be methodical principles, implied in the nature of law.*5 S t a m m l e r thus waives the traditional law of nature as the u l t i m a t e criterion by w h i c h positive law may be a d j u d g e d j u s t o r unjust, since the law of n a t u r e is n o t properly contentless, and, rather than p r o v i d i n g a measure of w h a t has b e e n incorporated in the positive law, is itself seeking to pass over and b e c o m e positive law.

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Instead of the traditional law of nature, therefore, he fixes on, as the Theory of Just Law, the theory of "natural law with variable content." 48 Stammler means, however, by "variable content," not any actual content, but simply the certainty that the content must vary. In opposition to Kant, Hegel, and Von Ihring, who had held that law was the creature of an omnipotent state, Stammler believed that law came before the state, that the state was the creature of law.47 Just law, undergirding a society which would otherwise be inchoate, and binding it into statehood, into a community of free-willing men, alone can accomplish this. This is the nature of law; and this nature of law Stammler takes as his a priori, the pure, contentless, "objective" principle he has sought as the criterion of just law. Stammler seems not to be shaken in his view that he has found something important by the fact that "the idea of a legally ordered life in general," while perfectly acceptable, is vague, in view of the various forms this idea would take in varying historical periods and cultures and circumstances. It is also thin, in view of his prescription that it be deprived of content. So vague and so thin it is, indeed, that it seems almost meaningless. But Stammler's quest for an a priori is satisfied. He has found what he terms "a fundamentally and eternally true idea of natural law, which implies a content in agreement with the nature of law rather than with the nature of man." (Italics mine.) 48 François Geny, one of the foremost jurists of France, and a contemporary of Stammler, comments on Stammler as follows.

go

N a t u r a l Law

Accordingly, the problem of "just law" essentially aims at the discovery of a formal method of general value, capable of assuring the fundamental regularity of social life, which will be able to hold in its embrace the infinite varieties of its content and maintain their necessary unity. . . . Hence the formula, natural law with variable content (ein Naturrecht mit wechselnden Inhalte). This (i.e., natural law with variable content) seems to express the principal idea of Stammler in a very striking manner.49 Geny goes on then sharply to criticize Stammler's failure to make a practical application of his theories in such a way as to define the content of his natural law theory. Geny seems not to realize that what Stammler primarily requires, in neo-Kantian fashion, is that his concept of just law be without specific content in order to retain the transcendental purity of its "methodical principles." William Ernest Hocking, in presenting a concept of absolute justice, is in sympathy with Stammler's position. " T h e standard we have now reached has a certain affinity with that of Stammler . . . and of others of the Natural Rights School in France. It resembles them in being a standard of justice: and in setting u p the principle of 'no Injustice' as a rule for law-making and law-administering." Hocking points out that Stammler's concept of das richtige^ Recht would embrace right and culture under one category, and not distinguish them within this concept, which locks them inseparably together. "For what is Culture, or what is it worth," he asks in Stammler's name, "unless it incorporates Right into its substance?" 50 "Unter Kultur kann doch nichts anderes verstanden werden, als das Streben nach dem Richtigen im Erkennen vie im Wollen." 51

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But an absolute "no Injustice" is so far beyond our poor powers as to confuse us more than guide. Hocking, himself, a few pages later, adds a palliative: "where injustice can be known." How can it be known except as measured by empirical tests? Hocking would measure it against the individual's opportunity to "develop the powers that are in him. He may be said to have a 'natural right,' " Hocking says, "an absolute right, to become what he is capable of becoming. T h i s is his only natural right." But what a surprising swing this is from the practical "where injustice can be known"! Without pragmatic or utilitarian tests, how can this natural right be given implementation in a court of law, for example, or be given any practical initiation in actuality? T h i s right appears to be more relative than absolute. For a man to become the best that he potentially can become might and would entail unreasonable and devastating sacrifices on the part of others. Here is an intricately intermeshed social problem which cannot have either its roots or its fruits in any elusive absolutes. For mankind to cleave to the hope of individual betterment on a wide scale requires a criterion of growth in a social context, a utilitarian frame of reference, and free pragmatic tests. It is to be expected that we should find J o h n Dewey voicing an opinion opposed both to Stammler and to Hocking. And here it is. It is undeniable that different standards, so different as to conflict with one another, have been held and used at different places and times in the past. Their conflict is sufficient evidence that they were not derived from any a priori absolute standard. . . . And what reason is there for thinking that the standards now put forth by those who appeal to a nonempirical absolute

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end will have a different fortune from those put forward in the past? . . . The usual way of meeting difficulties of this type is to admit that a distinction must be made between form, which is absolute, and its content or filling, which are historical and relative.62 Stammler has tried to meet the difficulty Dewey refers to by designating an a priori form. Then he admits that its content must vary. T h e trouble with this olive branch held out so invitingly by Stammler, as Dewey would be the first to agree, is that the only clear, vigorous "form," so to call it for the moment, into which man's political good can be poured, is the criterion of pragmatic-utility and growth. And such a criterion is all varying content—with absolute form erased. Both del Vecchio and Stammler, reviewing the history of natural law, refer to Aristotle's and to Cicero's treatment of it. Both analyze Grotius and quote from him, lauding his acumen in having divorced natural law from religion. Stammler, in particular, refers to disciples of Thomism, "in which ius naturale is regarded as the emanation of human nature given by God." " T h e writers of this school vary considerably in the problem of the law of nature. T h e fundamental method alone of the famous scholastic is common to them all." 63 I mention these facts here because when we find such abstruse and neo-Kantian ways of thought expressed so obscurely and so diversely, it does tend to point up their authenticity and their relevance to the present discussion when we discover that their authors have availed themselves of common access to the same natural law documents, each as the other, and as we ourselves. This is a kind

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of guarantee—insofar—that we are all at least trying to talk, about the same thing. Stammler's natural law with variable content is in the last analysis no more helpful than del Vecchio's a priori natural law. It might have had value had Stammler been willing to substitute for the older, vaguer, more static metaphysical natural law theory a vivid concept of natural law as man's quest for the best in terms of utility. But his "nature of law," or "natural law with variable content" is as contentless as Kant's Duty, a "concept without a percept," indeed, or rather, without what in logic is called a referent. By some critics Stammler is taken as more neo-Hegelian than neo-Kantian; and his "natural law with variable content" is seen by some as forming a synthesis of the traditional law as thesis and the approach of the Historical School as antithesis The pages of Charles Grove Haines' book The Revival of Natural Law Concepts, referred to above, are filled with the names and theories of European traditional natural law thinkers, most of them historians, philosophers, or jurists in high standing. It does not serve my purpose here to go into these. I will simply mention by name three near contemporaries, Cathrein, Troeltsch, and Geny, as being particularly well known. Troeltsch will be referred to again in Chapter IV. To sum up del Vecchio and Stammler at this point; both hold to a metaphysical, extramundane natural law doctrine, in which justice is given an absolute and transcendental status, del Vecchio's concept of "the eternal seed of justice" being more metaphysical than Stammler's, and Stammler's

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theory more outspokenly social than del Vecchio's. But for empirical inquiry, looking for clarity, instances, and evidence, there is little to choose between them. I will pass now to Jacques Maritain, a distinguished contemporary French philosopher who has recently served his country as ambassador to the Papal See. As this book goes to press he is Professor of Philosophy at Princeton University. Of himself Maritain says, " I am a Thomist." 55 T h e book of his which concerns us now was published in 1943 under the title, The Rights of Man and Natural Law. I intend to make an orderly criticism of the whole natural law doctrine in Chapter IV. In giving Maritain's view here, however, I shall to some extent criticize as I go this recent expression of the traditional doctrine. M. Maritain's book expresses a view which, since Aquinas, certain R o m a n Catholic philosophers have religiously held to, and, since Hooker, certain Protestants. Maritain adds his own special philosophical interpretation. H e does not really depart from the scholastic theory of natural law. But he does gather into this theory—less to give it strength, I believe, than to give it a wider denotation—a philosophical bias which is fairly widespread, in a tenuous and various way, and which is called "personalism." Maritain characterizes his conception of society as persovalist, because it considers society to be a whole composed of persons whose dignity is anterior to society and who, however indigent they may be, contain within their very being a root of independence and aspire to ever greater degrees of independence until they achieve that perfect spiritual liberty which no human society has within its gift.™

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Whether this statement is regarded as referring to one of the tenets of personalism or strictly to the natural law doctrine, its meaning is elusive. There is no guessing in what sense the dignity of persons might be anterior to society. It is not easy to conceive of dignity in vacuo or in isolation. Yet there is no plausible way to take "anterior" other than temporally. In saying that political society "considers the common good superior to that of individuals," 57 Maritain implies a utilitarian goal for society. So also in the following statement. The essential and primordial objective for which men assemble within the political community is to procure the common good of the multitude, in such a manner that each concrete person, not only in a privileged class, but throughout the whole mass, may truly reach that measure of independence which is proper to civilized life.58 Along with this initial utilitarianism is developed that political theory called in the preceding chapter the theory of "self-realization," the norm of growth, which so often does accompany and logically supplement the norm of utility. Amidst the difficulties, conflicts and distress of a still primitive state of humanity, the political task must realize as much as it can of its own essential and primary exigencies. And even that is possible only if it knows these exigencies, and if it is fixed on a noble and difficult historical ideal, capable of raising up and drawing forth all the energies of goodness and progress hidden in the depths of man. . . . The political work in which human persons may truly find communion, and to whose realization, all through the centuries to come, the earthly hope of our race and the energy of human history must normally be applied, is

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the establishment of a brotherly city where man shall be free from misery and bondage.59 Here we find expressed a dual object for man's planning and contriving and effort: to build a political society which shall procure the common good, and to build it so that within its protection and under its aegis each individual may develop "all the energies of goodness and progress" which are hidden in him. But in the following chapter of The Rights of Man and Natural Law Maritain expresses a social and political philosophy much less empirical than this, much more rationalistic. "There is," he says, "by very virtue of human nature, an order or a disposition which human nature can discover and according to ivhich the human will must act in order to attune itself to the necessary ends of the human being. The unwritten law, or natural laiu, is nothing more than that." 60 (Italics his.) Now these two political concepts are opposed and logically as ultimates are mutually exclusive. T h e legitimate combination of utility and self-realization as society's goal rests upon free initiative and intelligence, along with social tenderness, careful evaluation of past successes and failures, as Bentham pointed out, and a judicious use of pragmatic tests. Thus a society bent upon utility and self-realization will mark out promising objectives and, tentatively and testingly, direct towards those objectives whatever legitimate forces they have at their disposal. This set of conditions precludes as man's social goal the attempt to "discover" an ideal order or disposition in nature to which he must attune himself and thereby find his true worth. The

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first ethical concept, or concept of man, expressed by Maritain is largely empirical; the second is out-and-out rationalistic. T h e two are at odds, and, as ultimates, are contraries. Yet we have Maritain declaring for both of them, not precisely, of course, with clear-cut determination—this would be impossible—but ambiguously, each concept being colored with something of the other, and both expressed with great social warmth and optimism. We are concerned here, however, not specifically to criticize Maritain, but to address ourselves to analyzing his theory of natural law. Natural law, he has said, is "nothing more than" human reason's power to discover a certain disposition in nature and the human will's obligation to act in accordance with this disposition in order to attune itself to the necessary ends of the human being. Once Maritain has introduced his concept of natural law in this its final form for him, we hear no more about utility. The great philosophers of antiquity knew, Christian thinkers know even better, that nature comes from God, and that the unwritten law comes from the eternal law which is Creative Wisdom itself. That is why the idea of natural law or the unwritten law was linked for them to a sentiment of natural piety, to that profound and sacred respect unforgettably expressed by Antigone [who has been called by Maritain "the eternal heroine of natural law."] Because they understand the real principle of this law, belief in it is firmer and more unshakable in those who believe in God than in the others.81 Yet it was expressed with paramount faith and firmness by Cicero, who was surely no theist. It will be noted that Maritain with one hand debars from full comprehension of natural law persons who do not be-

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lieve in God, thereby undoing the work for which H u g o Grotius has been so highly praised, while with the other he readmits them, but on a somewhat lower level. Yet it is very hard to see why belief in G o d should be a prerequisite to the acceptance of this traditional law, which, according to Maritain, is the ensemble of things to do and not to do which follow in necessary fashion from the knowledge that we must do good and avoid evil, and from the simple fact that man is man, nothing else being taken into account.02 [Italics Maritain's.] . . . Belief in human nature and in the freedom of the human being is in itself sufficient to convince us that there is an unwritten law, [Politely we ask: Why is it?] and to assure us that natural law is something as real in the moral realm as the laws of growth and senescence in the physical.83 Here we have the a priori from which this present natural law concept stems: the simple fact that man is man and human reason's ability from this to make the required deduction of natural law. In the realm of action, according to Maritain, natural law is expressed as human rights. There are tilings which are owed to man because of the very fact that he is man. The notion of right and the notion of moral obligation are correlative.84 . . . It is by virtue of natural law that the Law of Nations and positive law take on the force of law, and impose themselves upon the conscience. They are a prolongation or an extension of natural law. . . . Thus there are imperceptible transitions (at least from the point of view of historical experience) between the natural law, the Law of Nations, and positive law. There is a dynamism which impels the unwritten law to flower forth in human law, and to render the latter ever more perfect and just. . . . It is in accordance

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with this dynamism that the rights of the human person take political and social form in the community.85 All this would seem to mean that natural law is the source from which positive laws draw their content. It would, however, be difficult to point to any specific instance of the "dynamism" referred to in the wrangling give-and-take of our human legislatures, with their pressure groups and quid pro quo, their play for the favor of constituents, their inertia and laissez faire; and it would be impossible to show this flowering of the unwritten law into human law which, Maritain says, renders the latter "ever more perfect and just." At this point Maritain appears to be very far from empirical observations and very far also from a utilitarian concept of the purposes of the lawmaker. He seems to have swung over into an almost Hegelian idealism which finds forces in nature that work out to the end a kind of dialectic of natural law, passing over by their own "dynamism" from natural to positive law. It is method which is at stake here, more than fact. T h e empirical mind, informed by scientific and historical interest, in seeking explanation of natural manifestations, requires that the explanation hug facts where facts are known, open the way to new knowledge, be as simple as it can without sacrificing adequacy. Explanations must "lead on." T h e rationalistic approach of these more or less traditional natural law thinkers, whether neo-Kantian, neo-Hegelian, or religious, seems remote and end-stopped, a cul-de-sac of the mind, not a method at all. As for resting the explanation on religion: if God gave mankind this law with any intention that it should be taken as a guide, we must conclude that

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He gave it with one of the meanings attributed to it, rather than with the whole welter of meanings in which we find ourselves bogged down. H e would hardly have caused it to be "promulgated" in a wild confusion of meanings without giving some indication as to which one He intended us to take. As it is, the meanings attributed to it are so equivocal that they can be used to bolster up any social or political argument whatever—and they have been so used. Why must we "fly to the will of God" for explanation— in a political issue surely "the refuge of ignorance"? Why call the law of nature an expression of divine will, when it can be adequately explained as human will? This pedestrian explanation is both more satisfying intellectually and more profitable in terms of human understanding and human good. T h e thought of such philosophers as William James and John Dewey can throw light on this debacle. "Ideas (which themselves are but parts of our experience) become true just in so far as they help us to get into satisfactory relation with the other parts of our experience." 06 James stands squarely with Dewey here.67 It is by this process that an idea gets itself classed as true,** James says. (Italics mine.) In the rational view of natural law there is a very cloudy, if any, combination of experiences to be found. It is not only the method which is objectionable, but the fact that being the method of rationalism it can lead only to the old and faraway problems of the mind. T h i s is the old-time method of the schools, and it never gets down to earth. It never can see what it calls natural law as the shifting, provocative, instructive, historical, human issue of liberty that it is: temporal (not timeless), practical (not rationalistic), replete with hu-

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man tensions and human challenge. This is a problem, like many problems, which will not stand still as Idea-ridden philosophers train upon it the static methods of intellectualism. So the empirically minded thinker cannot in honesty let this rationalistic method be resuscitated and go unchallenged as it attempts to deal with a vital human problem. Is there really anything above and behind the majesty of positive law which cannot quite simply be accounted for? As we recall the centuries of consideration man has directed to the inevitable conflicts arising between his security and his freedom, his agelong struggle to "hold the balance" between these two, devising political schemes by which he tries to get as much as he can of both, some of the majestic transcendentalism may fall away from what has been called the law of nature. Aristotle seems to have given a very competent explanation of natural law. It states, he said, the basic moral conditions for a civilized life of human sociability such as the human animal loves and is willing to pay for. Man is determined to guarantee to himself this sociable life even at the cost of the necessary relinquishment of certain individual freedoms. But he is also determined to relinquish no more than he must in order to hold what freedoms he can. He relinquishes more or less as time and circumstances dictate. This is the law of nature. T h e Roman conquerors told what it meant in their day when they said, in effect: "If we push people around too much, they will not be willing to be Romans." Hobbes told what it meant when he called it the conditions of peace. Hume told what it meant when he said what was quoted above: "Having found that natural as well

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as civil justice derives its origins from human conventions, we . . . perceive how fruitless it is to resolve the one into the other, and seek in the laws of nature a stronger foundation for our political duties than interest and human conventions." The rationalistic definition of natural law says too much about natural law on one level and not nearly enough about it on another level, namely, the level where we live. "Interest," Hume said, "and human conventions"—human devisings to enable us to enjoy and realize our interests. Surely this is where we live. And if the rationalist jeer at a human nature so debased as to live on the level of human interests, let him remember that he himself is deriving human interests from human nature as reason reveals it. On either family tree human interests have an important place. With "us," in James' sense, interests—man and his environment interacting—have made and make social human nature what it is. With "them," an a priori something called human nature has made human interests what they are. We say that natural law emerges from man's social nature as it is "rendered out" in the melting pots of many cultural situations. They say that natural law is deducible from man's "divine" nature. But man's sociability is a ubiquitously observable fact. Man's divinity, however much we may believe in it, is a rationally deduced hypothesis or an intuited first principle, neither of which is very helpful as method. Now the war clouds roll away, for we do come upon something, something fundamental and important, upon which the two camps can agree. The law of nature—so say we all—

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in politics becomes the rights of man. T h i s both sides would agree upon, each side, however, obstinately still holding to its own opinion as to what the law of nature is. Now, we are really getting somewhere! Yet, perhaps on second thought this pleasant "era of good feeling," this happy meeting of the minds on the rights of man, is more illusory than real. For the rights of man is the document of human liberty—of liberty for which more men and women, down through the ages, have been willing to bleed and die and have bled and died than for any other cause in history. T h e rights of man have been won. They have not obligingly crystallized out of a rational principle. Justice is man's guarantee to himself of freedom. It is the never-sleeping mediator between man's two great loves, freedom and security. Justice is charged with telling from age to age and from day to day, in season and out, in the vast human convulsions and in the long years of comparative peace, exactly how much of our passionately loved freedom we must yield in order to be safe at that time, at that historic moment, in those circumstances, and exactly how much of our calmly loved security we must sacrifice in order to be free at that time, at that historic moment, in those circumstances. If justice be seen as this sort of thing, then we are, indeed, split into two camps. For we have one group of thinkers who see justice as not of man's devising, but "a part of nature, that is to say, a structurally fundamental character" of our world. And we have another group of thinkers who see justice, in the words of John Stuart Mill, as "a name for certain classes of moral rules, which concern the essentials of human well-being more nearly, and are

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therefore of more absolute obligation, than any other rules for the guidance of life."

69

Here is the old difference w h i c h

M i l l himself cites. O n e school of thought, M i l l says, asserts "that the Just must have an existence in N a t u r e as something absolute, generically distinct f r o m every variety of the Expedient, and, in idea, opposed to it." T h e other school asserts, as M i l l does, that justice is " i n v o l v e d in the very nature of utility."

70

T h e crux of the matter is the word "absolute." T h i n k e r s w h o refuse to admit the concept of expediency into any part of the meaning of justice are taking justice to mean somet h i n g absolute: as absolute final cause. Others, more pedestrian, are thinking of justice as something not absolute, b u t as a means. Y e t the concept of Absolute Justice has great beauty, and must draw, in greater or less degree, all those w h o truly love justice. Even utilitarians, pragmatists, instrumentalists, and all their earthy company, know what it is to try to fix their gaze on this, which Plato called the Pattern in Heaven. O n e c o u l d find very few expressions of this idea so w i n n i n g and so beautiful as that taken by Maritain

from

A q u i n a s ' Commentary on Aristotle's Ethics.

Thomas

" I t is u p to

friendship to put to work, in an equal manner, the equality w h i c h already exists a m o n g men. B u t it is u p to justice to draw to equality those w h o are u n e q u a l : the work of justice is fulfilled when this equality has been achieved."

71

M . Maritain is in good philosophical company, indeed, w h e n he refuses to look away from the starry heavens above and the moral law within. B u t there is distinguished company, also, for those of us who, having caught the vision,

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feel compelled to go back down into the Cave again, as Plato tells us to do. W e cannot but concentrate upon the struggle and the drudgery and the work of justice as never fulfilled. It is because we see justice as never fulfilled that we must be vigorously and continuously concerned with history. History, too, is never fulfilled. Justice is one of the ships on that dark and troubled sea—perhaps the most splendid ship of all. According as her sails are full and straining forward, with the sun breaking down on them out of the storm, or spilling the wind out as she luffs and veers, the good life for man goes a h e a d — o r flounders ineffectually "in irons." Of course the followers of Maritain's way of thought recognize the fact that the millennium is not here. But they maintain that it is held in abeyance by the recalcitrance of our understanding of the nature of reality rather than by man's fallibility, egotism, and greed, which it is the business of justice to watch. But justice cannot watch these things from the clouds. In order to watch them, in order to exert the needed, expedient checks and controls, justice must be as earthbound as they are, and as realistic. W e who follow the more empirical way of thought, therefore, cannot let the unwarranted optimism of the opposition go unquestioned, even though we may be called—as we always are called—trucklers to the practical, blind to the stars. For we hold that an unrealistic idealism, far more than a realistic skepticism, is in the long last the very taproot of pessimism, lack of vision, and defeat—yes, even in man's attempts to love and trust his fellowmen as brothers. T h e more such a rationalistic concept as justice a priori is endowed with any special prestige and removed from criticism and critical

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analysis from day to day, the more surely mankind, with the wool over its eyes, is sitting on a volcano. William James is quoted here again, because the words he used to point the difference in these two opposed attitudes of mind have never staled. Absolutists do not like history, he says, because the doctrine on which they lay most stress is the absolute's "timeless" character. [This is as true of the ethical absolutists as of the metaphysical absolutists of whom James was speaking. For the empirical view, however,] time remains as real as anything, and nothing in the universe is great or static or eternal enough not to have some history. But the world that each of us feels more intimately at home with is that of beings with histories that play into our history, whom we can help in their vicissitudes, even as they help us in ours.*2 T h e historical approach to ethical questions, and to political questions, and to questions of world politics tells us at least where to begin. Maritain, following Aristotle, cites Antigone. She is a fair example of the way man's respect for the laws taught by religion serves to comprise a part, at least, of the law of nature as Jacques Maritain interprets it. But there are other requirements, pressing requirements. Aeschylus gives us Prometheus, who endures unspeakable suffering, almost interminably protracted, as the price of fire for man. If sickness visited them, they had no healing drug, no salve or soothing potion, but wasted away for want of remedies. . . . The mingling of bland medicaments for the banishing of all diseases, . . . the secret treasures of the earth, all benefits to

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men, copper, iron, silver, gold, . . . all human arts are from Prometheus.78 Prometheus may be taken to symbolize man's grasp of the first beginnings of a way to satisfy those fundamental, growing urgencies which have so elaborately been served up as natural law. An empirical interpretation of this in a political frame of reference points merely to the way man has from century to century, been watch-dog over his positive, practical freedom. He seeks to resist what would check him too sharply and procure what would meet his needs. Man discerns in the context of his experience the things which, as he says, "want doing"; these he projects, as it were, into the forefront of his mind to do. T h i s is freedom of purpose, which can then pass over into deed. T o rationalize and transcendentalize the vivid, immediate, pressing spur of need which is thrusting into the quick of our bodies and the quick of our souls is to anaesthetize our very springs of action. If it is asked, "What is actually 'needed'? W h o decides what the real 'needs' are?" the answer is not hard to find. Felt needs are only interests stepped up to a point of intensity at which man makes an effort to supply them. Man is quick to say he "needs" something. Let him only want it, and soon enough it becomes a "need." But there is a hierarchy of "needs," just as there is a hierarchy of wants, and a hierarchy of interests. T h e r e are individual needs without which the human creature dies. There are world needs without which civilization will fall apart, if it does not go up in a grandiloquent mushroom of atomic smoke.

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T h e world needs of the present are for plenty, for a fair distribution of plenty, and for peace that looks to brotherhood and justice. In this so great emergency we might well forget that ambiguity which has been called the law of nature. There is a man sized job to be done in a sorry world— if this be not a fatal understatement—and natural law, derived by reason alone "from the simple fact that man is man," will not do a thing about it.

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ATURAL law, in its metaphysical interpretation, has been consigned by a contemporary Justice of the Supreme Court to "the museum of juristic relics." Looked at from a slightly different point of view, it is a museum of juristic relics. This doctrine perpetuates, in its complex of assumed meanings, all those elusive, sophistical, factitious, and unclear concepts relating to man which purport to derive from his rational nature. Where this interpretation is accepted, these concepts command a special status in the universal scheme, especially in the realm of law-making. Charles G. Haines is reassuring as he sets forth the statement quoted above: 1 "The traditionalist or metaphysical approaches to an understanding of the law have had little vogue in England and in America." Yet we do find very many references to natural law in the writings of Englishmen and in the writings of our own Founding Fathers, as well as in later English and American writers. Some of them clearly refer to the ages-old natural law idea without attempting to stipulate any exact meaning for it. This is a vague idea that justice is a big pie, somewhere "in the nature of things," and that man is entitled to put in his thumb and pull out a plum by virtue of his rationality. Most of the English and American instances approach the concept of natural law by way of "inalienable rights" or

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"natural rights." Often a reference to natural rights or a discussion of natural rights is as far as these thinkers go. A good example is the powerful eighty-fourth paper of The Federalist, cited above (page 64), where Hamilton waives the propriety of including in the proposed Federal constitution any bill or bills of rights. Hamilton here gives it as his opinion that to attempt to make a list of human rights and include it in the proposed constitution would be "not only unnecessary . . . but would even be dangerous." Such a listing, he argues, could not enumerate all human rights. Yet it might be held that rights not included in it could not properly be claimed.2 It will be important in this book to inquire into the meaning of the terms "inalienable rights" and "natural rights" as the colonists used them. They do not refer, except in rare and very special cases, to the purely transcendental natural law idea. Insofar as these concepts seem to derive from natural law theory, it appears to be natural law taken somewhat confusedly, in the Aristotelian sense rather than the Ciceronian, and thought of as only a partial source of man's rights. Indeed, the Founding Fathers, as they employed the notion of natural law—and they did, explicitly or by implication, employ it frequently—gave it very often a utilitarian meaning. Such a utilitarian meaning is logically in opposition to the transcendental meaning which relates to man's rational nature: it supplies a contrary premise. Of all the Founding Fathers, Thomas Jefferson, perhaps, most lays himself open to suspicion of the metaphysical approach. There is no question but that he has this preoccupation, as he refers to the rights of man. Yet The Com-

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monplace Book, found among Jefferson's papers, should, it seems to me, exculpate him of the charge of being an outand-out a priorist. This is the opinion, also, of Gilbert Chinard, who edited The Commonplace Book, a "sourcebook and repertory of Jefferson's ideas on government." Jefferson began the book earlier than 1776. He added to it till the time of his death. It consists, for the most part, of abridgments of works read in his student days which struck him as worth preserving. It includes also his own comments. The Commonplace Book [Chinard writes] will enable one to reach at least provisional conclusions on the origin of some of the ideas which constituted the mainstay of Jefferson's political system. . . . Whatever may be the value of his political philosophy, he did not come to it through a sudden revelation; had he cared to do it, he would have been able, in order to support his views, to quote from a long list of authorities. The doctrine of natural rights was enunciated after a long and painstaking investigation of the customs and ways of living of the early populations of Europe. The theory of federative government was the result of this study of the constitutions of Greek cities, of the Union of Utrecht, the Swiss confederation, the Dutch states, and the elective monarchies of Northern Europe.3 Section 694 of The Commonplace Book begins a long series on the history of early European populations and their governments. Dr. Chinard says: It seems from the nature of these abstracts that he had a definite purpose in mind, namely, to demonstrate to himself that the oldest forms of government known to the primitive peoples of Europe rested on popular sovereignty.4 In Pelloutier's Histoire des Celtes and Histoire des Galates,

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as Chinard points out, Jefferson found a confirmation of the rights of colonies to govern themselves independently. In the extracts he made from the histories of various countries one will ñnd most of his favorite contentions: that the federative system of government is the only one which protects liberty against foreign aggressors and permits the development of local liberties; that the foreign relations of such states ought to be the function of the federal government and that, to use the words he copied from Montesquieu some time later, "cette sorte de republique, capable de resister a la force extérieure peut se maintenir dans sa grandeur sans que sa force se corrompe.5 W i t h similar zeal, Hamilton and Madison, to whom is ascribed joint authorship of Nos. i8, 19, and 20 of Federalist,

The

analyzed various historical confederacies. T h e y

began with the Greek republics associated under the Amphictyonic C o u n c i l and the Achaean League; they considered the feudal union of kingdoms under Charlemagne, the Polish "government over local sovereigns," the loosely connected cantons of Switzerland, and the United Netherlands. It was the purpose of these two great patriots to attempt to discover what were the weaknesses which caused these attempts at confederation to fall apart, so that the same errors might be avoided in the proposed American federation. T h e final paragraph of No. 20 begins with these words. " I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred." Here Hamilton expressly repudiates an earlier dalliance with rationalism and with the transcendental natural law. A man w h o says, "Experience is the oracle of truth," is a

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man who will place no final faith in "the ignis fatuus of a priori speculations of closet philosophers." By the time Hamilton addressed himself to the challenge of writing The Federalist with James Madison and John Jay, he had put away casuistry. It was all very well to claim in forensic pamphlets something as vaguely persuasive as the law of nature. But it is significant that in The Federalist, published after the war for freedom had been won, Publius, as the tripartite author was called, had got his feet on the ground. T h e three authors of The Federalist were submitting for study and analysis a carefully constructed argument in s u p port of the new constitution. They were trying, above all, to say what they meant and to say it precisely. Ambiguous terms like "the law of nature," as an ensemble of things to do and not to do which follow from the simple fact that man is man, have no part in it. Madison, referring to "the transcendent law of nature and of nature's God" strips away its transcendental qualities as he says that it "declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." s This is utilitarianism. It is generally conceded that Madison was not partial to natural law metaphysically interpreted. The contributions of John Jay to The Federalist are purely practical. He does not broach the idea of natural law at all. As a very young man Hamilton had, indeed, cited the traditional law of nature. He had recommended to the attention of his readers "Grotius, Pufendorf, Locke, Montesquieu, and Burlamaqui," 7 quoting Blackstone as his au-

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thority that " t h e sacred rights of m a n k i n d . . . are written . . . in t h e whole v o l u m e of h u m a n n a t u r e . " B u t by t h e time h e reached his m a t u r i t y h e was ready to say: "Justice is t h e e n d of g o v e r n m e n t . " 8 " A good government implies two things: first fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can best b e obtained." 9 T h i s , again, is to identify justice with utility, or " t h e happiness of the people." In P a p e r N o . l H a m i l t o n has pointed o u t how critical is the d e l i b e r a t i o n on a new constitution, " c o m p r e h e n d i n g in its consequences n o t h i n g less than t h e existence of t h e U n i o n . . . the fate of a n e m p i r e in many respects the most interesting in the w o r l d . " " H a p p y will it b e if o u r choice should be directed by a judicious estimate of o u r t r u e interest, u n p e r p l e x e d a n d unbiased by considerations n o t connected with the p u b l i c good." Yes, my countrymen [he writes in this initial paper of The Federalist, as he urges the adoption of the new constitution], I am clearly of the opinion that it is to your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. . . . My arguments will be open to all, and may be judged of by all. . . . I propose in a series of papers to discuss the following interesting particulars: T h e utility of the Union to your political prosperity—etc. H a m i l t o n leaves n o d o u b t that f o r h i m justice a n d the happiness of t h e people are identical objects of government. T h e term utility, as used by h i m in political philosophy, relates to t h e political prosperity of t h e people as the object of statecraft. H e r e is an empirical a n d utilitarian criterion logically irreconcilable w i t h traditional n a t u r a l law. T h u s h e emerges f r o m the fog of his y o u t h f u l rationalism.

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The Commonplace Book instates Jefferson no less in the empirical tradition. But the passages quoted above from The Commonplace Book are not an exact index to Jefferson's attitude towards natural law. I find one straw which may show which way the wind blew as he came to consider closely the meaning of this equivocal concept. James Wilson, from whom Jefferson quoted a number of passages in the Commonplace Book, expressed himself in Lockian style as follows, in a pamphlet which he wrote about 1770. C. All men are by nature free and equal: No one has a right to any authority over another without his consent: All lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed above what they could enjoy in an independent and unconnected state of nature. The consequence is that the happiness of the society is the First law of every government. D. This rule is founded on the law of nature: it must control every political maxim: it must regulate the legislature itself.10 [Italics mine.] In a very different context, Dr. Chinard points out that Jefferson, in The Commonplace Book, quoted Sections A, B, and E, of Wilson's tract. Jefferson omitted C and D, however. Dr. Chinard is not interested in the reason for Jefferson's making this omission. But it seems to me that it may very well have been that the completely utilitarian natural law ideas expressed by Wilson in C and D, particularly the underlined passages, were not acceptable to Jefferson's understanding of natural law. Therefore he omitted them. T h e sentences in C which immediately precede the italicized portions would surely have been accepted by him as they had come down to Wilson directly or indirectly from

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John Locke. But Wilson's connecting the law of nature with "the principle that the happiness of the society is the first law of every government" was, perhaps, too utilitarian for a mind not altogether averse to the transcendental. Hamilton, Madison, and Wilson, and other Americans of their time, whether they knew it or not, had good authority for their identification of natural law with utilitarian principles. This interpretation is suggested by many writers. It is definitely empirical, nonmetaphysical, and to some degree implicit in the whole Aristotelian lineage. What I have called the Political Form of the idea [of the law of nature] is to be found in the notion, as old as Epicurus, that there is a close connection between the Law of Nature and the Common Good [James Bryce says], a connection sometimes represented by saying that Natural Justice prescribes what is useful for all. . . . This notion comes right down through the ancient world to modern times, and is really implicit in nearly all that has been written on the subject. No one would have repudiated the high metaphysical view of the Law of Nature more vigorously than Bentham [and he did], yet there is an affinity between his methods of applying utility as against positive laws and the methods of the ancient philosophers.11 This utilitarian interpretation of natural law is first most clearly expressed by Richard Cumberland. In 1672 in De legibus naturae, Cumberland asserted that "regard for the 'common good of all' is the supreme rule of morality or law of nature." 12 " T h e greatest possible benevolence of every rational agent towards all the rest constitutes the happiest state of each and all, so far as depends on their own power, and is necessarily required for their happiness; accordingly common good will be the Supreme Good." This "Supreme

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Good" Cumberland designated as the supreme law of nature. His view is at this point profoundly Spinozistic, combining utility with self-realization and identifying public and private interests. That Jefferson had no consistent "higher law" preoccupation, as such, is indicated in a letter to Edmund Randolph, 18 a Virginia statesman, Attorney General under Washington, Jefferson's successor as Secretary of State. This letter, written from Monticello in August, 1799, discusses the question of what validates law. T h e "traditional natural law thinker" would certainly mention natural law in this connection. But Jefferson says, "It is the will of the nation which makes the law obligatory," and again, "the law being law because it is the will of the nation." " T h e will of the nation" he designates as "the true bottom on which laws and the administering them rest," and he says nothing whatever about natural law as source or standard or "bottom." It would seem, then, that Jefferson, though not willing to relate the natural law to the utilitarian principle of social happiness, did not think of it as a higher law, binding upon lawmakers in the usual metaphysical sense. Indeed, he was sufficiently shrewd and logical to realize the ambiguity and lack of precise meaning in the concept. "Questions of natural right are triable by their conformity with the moral sense and reason of man," he says in an Opinion rendered April 28, 1793, "On The Question Whether the United States Have A Right T o Renounce Their Treaties with France," 14 and so forth. Those who write treatises of natural law, can only declare what their own moral sense and reason dictate in the several cases

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they state. Such of them as happen to have feelings and a reason coincident with those of the wise and honest part of mankind, are respected and quoted as witnesses of what is morally right or wrong in particular cases. Grotius, Puffendorf, Wolf, and Vattel are of this number. Where they agree, their authority is strong; but where they differ (and they often do differ), we must appeal to our own feelings and reason to decide between them. This is a generous provision for individual interpretation and for semantic confusion. James Wilson, friend of Jefferson, was one of the principal authors of the Federal Constitution and a signer of the Declaration of Independence. Known as a stout defender of natural law ideas, he seems to have realized, as Jefferson did, that here was an elusive, undefined concept. As for the possibility of definition, Wilson openly refused to tackle it. Coming from Scotland as a young man, in 1765, he studied law in the office of John Dickinson. Here, no doubt, he heard much of the eternal law of nature, though Dickinson is said to have been less influenced by this concept at this period than in his later life. In the pamphlet referred to above, Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, as I have shown, Wilson declared for the law of nature. In the last analysis, however, he gave it a utilitarian, not a transcendental meaning. But in his Lectures on Law, published posthumously in 1804, a different view is expressed. At the time of writing these lectures Wilson was Associate Justice of the Supreme Court. He had been professor of law in the College of Philadelphia, which later became the University of Pennsyl-

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vania. So he came to the consideration of this " l a w " by way of the practical as well as the theoretical. In the lectures the law of nature is called "the pole star by which we may regulate our course," "the will of God, the supreme law," which puts into our hearts self-evident first principles of morals. From these, Wilson said, reason deduces the natural law, "immutable and universal." Cicero is cited as authority; Burlamaqui, Pufendorf, Locke, Blackstone, Paley, Hooker, and Rutherford are called as witnesses. Yet, after a few devoutly religious remarks in the chapter " O n the Law of Nature," there follows an admission of the confusion attendant on this idea. A delineation of the laws of nature has been often attempted. Books, under appellations of institutes and systems of that law have been often published. From what has been said concerning it, the most finished performances executed by human hands cannot be perfect. But most of them have been rude and imperfect to a very unnecessary, some to a shameful, degree. A more perfect work than has yet appeared upon this subject would be a most valuable present to mankind. Even the most general outlines of it cannot, at least in these lectures, be expected from me.15 T h u s Wilson employs the term natural law first as meaning utility, then as given by God in the form of moral principles. Finally, while continuing to use it, he explicitly washes his hands of responsibility to give its meaning "even in the most general outlines." It would not be improper to say here of Wilson what I have said of Jefferson, that apparently semantic confusion had no terrors for him. T h e uses of the natural law idea in those days of forming democracy, without being casuistical, were about as inexact

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as these waivers suggest. Also, it can hardly be doubted that the idea was used as a forensic tour de force in the way proposed by Aristotle: "If the written law tells against our case [or is not in existence, or is not applicable, or is not strong enough], clearly we must appeal to the universal law, and insist on its greater equity and justice." In this Jefferson and Wilson did not differ from their fellow countrymen of that day, contenders for American liberty against the bullheadedness of the king and the plundering propensities of the British Parliament. T h e American patriots of this period were not only "making history"; they were making law. In order to make it, and "make it stick," they used all the cement the law allowed. A fundamental American law was evolving, which for Americans should be above Parliament and ultimately above the king. In this fundamental law four elements were distinguishable: (1) the colonial charters; (2) the English constitution and common law, as well as statutes that had come to be regarded as basic, including Magna Charta; (3) natural law, "the latter appearing in different guises in different pamphlets"; (4) and the law of God. 10 T h e writings of the American pamphleteers before the Revolution and the writings of American patriots during and after the Revolution state these elements over and over again. They state these elements as the reasons why America should not feel obligated to show loyalty to the Parliament across the sea. T o a great degree they rested their case 011 the interpretation of the common law given by Sir Edward Coke, Chief Justice of England under James I, who had elevated the common law above Parliament and king, alike. In particular, the legislative authority of Parliament

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over Americans, since the colonists had not by an act of theirs subjected themselves to that authority, was explicity denied. T r u e words were written by Samuel Adams that never was there a people " m o r e strongly attached to their natural and constitutional rights and liberties, than the British Colonists of this American Continent." Yet that very love of liberty which animated them, and the exact pivot upon which their position hinged, had been expressed with consummate vigor more than a century earlier. In the Puritan Rebellion, waged in England by the officers and common soldiers of Cromwell's victorious army, the same objection was spear-headed and thrust on till it resulted in the deposition and execution of the king. One of the representatives of Cromwell's regiments, in conference with the officers, expressed with stirring clarity the Englishman's defiance of government attempted without the consent of the governed. Really I think that the poorest he that is in England hath a life to live as the greatest he; and therefore truly, Sir, I think it's clear, that every man that is to live under a government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not at all bound in a strict sense to that government that he hath not had a voice to put himself under. 17 Benjamin Franklin, once his mind was made up, expressed this same position for the colonists with masterly realism and directness. [An] expression of Franklin's views appeared in a letter in June. 1770, where he maintained that the colonies were originally constituted distinct states and that parliamentary power

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over them was usurpation: the king with his plantation parliaments, not the British parliament, was the sole legislator of the colonists. A year later he wrote that it had long been his opinion that "the Parliament had originally no right to bind us . . . without our consent." Finally, in a letter to Galloway in 1774 he insisted that before any lasting settlement could be made between England and America it would be necessary for all acts of parliament binding the colonies, including the Declaratory Act, to be repealed. 18 These few quotations are given to indicate afresh the American colonists' furious intentness upon their liberty. Not in every instance was there any written law to meet their need. So it was that they laid claim to every possible validating authority in their desperate hour: the colonial charters; constitution—common law—and Magna Charta; the laws of nature; God. Indeed, their arrogating to themselves the laws of nature could and should, in almost every instance, be "taken with a grain of salt." Such reality as this concept had for the colonists was not purely metaphysical, at any rate. Rather, as they stripped away so much of the legal undergirding of their society, by denying the authority of Parliament and king, they found themselves, somewhat to their surprise, lapsed back with one foot in that "state of nature" from which it was thought only natural law could lead them out. T h e diary of J o h n Winthrop, first governor of Massachusetts, for example, contains many references to all the types of law which the revolutionists were later to invoke. In particular, the "law of God" appeared frequently in Winthrop's pages, having, as might be expected, a most comprehensive meaning. Scarcely less impor-

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tant, however, was the charter: "the foundation of our government." 19 In the Writs of Assistance agitation, precipitated by writs which gave British customs officials the right of search, James Otis, famous pamphleteer and natural law man, at Oxenbridge in 1761 opposed the validity of the writs. H e pleaded the rights of man as based on the British constitution and natural law. T h e following year, in connection with another dispute, Otis declared that the colonists were entitled to all the privileges of British subjects "by the common law, by their several charters, by the law of nature and nations, and by the law of God." 20 But Otis is by no means univocal in his use of this "law." In his most famous pamphlet, The Rights of the British Colonies Asserted and Proved (1764), one finds the natural law prominently noticed. The central thesis is that government is limited by the laws of nature and God . . . Otis draws most heavily upon Locke, but he also quotes from or refers to Harrington, Vattel, Grotius, Pufendorf, Rousseau, Coke, Vaughan, Jeremiah Dummer, Magna Charta, the Bill of Rights and a number of British statutes, and the Bible. 11 In discussing the "natural rights of the colonists," however, Otis objects to the treatment of the subject by Grotius and Pufendorf. T h e y made the great mistake of establishing "the matter of right on the matter of fact." H e quotes with approval Rousseau's criticism of Grotius: " T h e learned researches into the law of nature and nations are often nothing more than the history of ancient abuses, so that it is a ridiculous infatuation to be too fond of studying them." 22 In these and other instances of the mention of natural law

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by the American colonists and by early citizens of the Union, where natural law is given as a partial or supplementary source of rights, it is quite clear that the term is used very loosely. Such meaning as it has is far removed from the metaphysical. It takes only a moment's consideration to be convinced that such thinkers as del Vecchio and Stammler —Pufendorf, Wolf, and Vattel, if you like—would never have cited natural law as just "one more thing" in any formulation of validating sources. For any traditional natural law thinker, natural law was all the ancestry any institution needed. Natural law would have absorbed such earthy parentage as charters, common law, and even Magna Charta and would have been one with the law of God. Samuel Adams, to multiply examples, who thought fuzzily on other subjects and thought fuzzily, as well, on natural law, could hardly be called a strict natural law thinker. John Adams is noted as an adherent of natural law, which, as it expressed itself in the rights of man, he held to be the only sound basis of government. Yet John Adams ascertained the principles of natural law not alone from deductions of pure reason but also from the historical survey of institutions. He elevated "experience" to equal status with "nature," and "the history of nations" to equal status with "the nature of man" as criteria by which political principles and forms of government should be judged. 23 In a letter to Samuel Adams (October 18, 1790) he wrote: "The love of liberty," you say, "is interwoven in the soul of man." So it is, according to La Fontaine, in that of a wolf; and I doubt whether it be much more rational, generous, or social, in one than in the other, until in man it is enlightened by ex-

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perience, reflection, education, and civil and political institutions. [Not, it would seem, "independent of all institutions!"] We must not then depend alone upon the love of liberty in the soul of man for its preservation. Some political institutions must be prepared to assist this love against its enemies.24 H e is currently quoted as telling the members of Congress, after he became president, when they asked him for advice, " ' T h e happiness of society is the end of government,' and therefore 'that form of government which communicates happiness to the greatest number of persons, and in the greatest degree, is best.' This, of course, was pure utilitarianism." " Samuel Adams, in the last analysis, was not at variance with his more famous second cousin in this utilitarian view. T o be convinced of this one need only consult his letter to J o h n rebuking him for his levity in the wolf citation. Samuel there asks: Is not government designed for the welfare and happiness of all the people? And is it not the uncontrollable, essential right of the people to amend and alter, or annul, their constitution and frame a new one, whenever they shall think it will better promote their own welfare and happiness to do it? 26 It should be repeated that Jefferson, as I have shown, was responsive to natural law, without being faithful to it. Much of his concern for natural law is explainable by the fact that he was not content to rest his case on the rights of Englishmen, as most of the Americans were doing. Jefferson tried to see, in the study he made of "Federal precedents," evidence of universal rights, not absolute therefore, but contrived by human effort, and now by him claimed as inalienable from humanity.

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In contradistinction to the most significant of the Revolutionary patriots, Dickinson, who had studied his law at the Middle T e m p l e , London, asserted that liberties do not result from charters, but, rather, charters from pre-existing rights, which he held were derived from the laws of nature.27 Yet this same Dickinson said in the Federal Convention of May, 1787, "Experience must be our only guide. Reason may mislead us." 28 One may note also that for Dickinson natural law had worked with great suddenness and precision into very specific human technical institutions! " T a x a t i o n and representation are inseparable," he wrote; " T h i s position is founded on the laws of nature; it is more, it is itself an eternal law of nature; for whatever is a man's own, is absolutely his own." 29 Dickinson even composed an address to the Committee of Correspondence in Barbados in 1776, in which he asserted that colonial rights came, not from temporal rulers, but from "the King of kings, and the Lord of the whole earth." 30 T h e confusion of natural rights with civil rights is characteristic of this period in American history. This confusion itself is a good indication that our American forefathers were, in general, no more talking about the kind of natural law that natural law thinkers like del Vecchio and Stammler were talking about than they were talking about enacted law alone. T o be convinced of this, one need but compare the contexts of the arguments of such men as Hamilton, and Madison, and even Jefferson in which the term natural law appears, with the quotations given in the last chapter from European philosophers of jurisprudence. These Americans were not referring to a natural law "independent of the

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existence of common institutions in all nations," to recall del Vecchio. Quite the contrary! Nor were they referring to a contentless natural law like that conjured up by Stammler. Their natural law was bristling with content, some of it, as we have seen, as down-to-earth as taxation and representation inseparably conjoined. T o recognize this is to concede the truth of the statement quoted above, to the effect that the traditionalist or metaphysical approaches to an understanding of natural law are not in general the ground for these American utterances. Thomas Paine, however, does seem to be profoundly a priori in his thought, unquestioningly and unrelievedly. "We must return to the first principles of things for information, and think, as if we were the first men that thought," he says in eifect. "We must get back to the 'first plain path of nature,' and find there the natural rights of man." 31 "Natural rights are those which appertain to man in right of his existence." 32 Paine, who died the year Charles Darwin was born, knew nothing of the theory of evolution. Considering man, unspoiled and unimproved by the ministrations of society, he is forced to take him, in abstraction, as he came from the hand of his maker. What was he then? Man. Man was his high and only title, and a higher cannot be given him. We are now got at the origin of man and the origin of his rights. Why not trace the rights of man to the creation of man? I will answer the question. Because there have been upstart governments, thrusting themselves between, and presumptuously working to unmake man.33 As Paine affirms the "equal rights of man," insisting that government hew to these rights and thus protect man's very

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integrity, he makes on the side a point which is vital to any t r u e understanding of constitutional democracy or the republican form of government. Some writers have so confounded society with government [he says at the beginning of Common Sense] as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness. . . . Society in every state is a blessing; but government, even in the best state, is but a necessary evil.34 There is no such thing as the idea of a compact between the people on one side and the government on the other. The compact was that of the people with each other to produce and constitute a government. The only instance in which a compact can take place between the people and those who exercise the government is that the people shall pay them while they choose to employ them. . . . Government is nothing more than a national association.35 T h i s is the essence of constitutional democracy: governm e n t responsible to the people who set it up. It is this distinction and this relation between people and government which precisely characterizes constitutional democracy, or republican government. It is this which sets it apart from all forms of government under which the individual has n o defense against the power of the state which absorbs him. T h i s distinction has never been better put than Paine p u t it. H e is by no means on such solid ground when he asserts, in transcendental vein: " T h e 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 of oppression." 36 Paine never wavers in this affix-

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m a t i o n , nor, presumably, does he ever subject it to the k i n d of analysis which appears to have made certain other A m e r i c a n s realize that tangled ambiguities and

uncer-

tainties lurk in it. A theory of rights held for man " i n the n a t u r e of things," held in suspension in nature, as it were, w i t h o u t institutional clarification, endorsement, and implementation, presents more problems than it solves. Passionate believer in liberty that he was, eloquent and wholehearted, it may be doubted that Paine had the education or the logical acumen to submit this doctrine, as Jefferson and W i l s o n and presumably others had done, to practical method a n d semantic tests. Paine's thought shows all the characteristics of extreme a priori. thinking, arrière

Especially as he repudiates history in favor of he reveals himself as a transcendentalist without pensée.

As to the prejudices which men have from education and habit in favor of any particular form or system of government, . . . these prejudices have yet to stand the test of reason and reflection. . . . It might be said that, until men think for themselves, the whole is prejudice, not opinion; for that only is opinion which is the result of reason and reflection. . . On the pure ground of principle, antiquity and precedent cease to be authority. . . . T h e reasonableness and propriety of things must be examined abstractedly from custom and usage. . . . Principles have no connection with time. . . ,38 On all such subjects men have but to think, and they will neither act wrong nor be misled.39 N o w it behooves us to ask what did Paine mean by "natural and imprescriptible rights?" T o make the question more general, what did our American forefathers mean by

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"natural and inalienable rights" and by other such expressions? W h a t was thought to be the source of those inalienable h u m a n rights, Life, Liberty, and the Pursuit of Happiness, which were claimed for all men, with the proviso that government was to secure them? W h a t was the source of the rights announced in the Bill of Rights of the State of Virginia, in other, similar state bills, and in our Constitution? Specifically mentioned are "life, liberty and property." T h e s e rights are claimed as belonging to the whole human race with such inherent and absolute interest that man could not "by any compact" deprive their posterity of them. Man could neither grant them nor withhold them. Was the natural law, as deduced by reason alone from man's essential nature, the source of these? T h e Constitution itself was thought of as the over-all American Bill of Rights. 40 T h i s question concerning the validating source of rights, as the founders of this republic saw the matter, will merit careful examination. Before w e consider it, however, I want to be sure that the logical conflict is clear between natural rights and rights evolved

or won. T h e n I want to give the thoughts on the

traditional natural law of two hardy Americans who have, with special penetration, probed the clarity and validity of this metaphysical wonder. T h e s e two Americans are T h o m a s Cooper and Oliver Wendell Holmes. T h e logical conflict should be clear. Either

rights may

logically be taken as congenital, part of man's nature, rationally deduced, the foundation of political institutions, or they may logically be taken as contrived means to the general good, some of them wrested from a sovereign, others

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pragmatically designed in the interest of utility. As the first, they are thought of as primordial; as the second, they are thought of as instrumental. Without logical confusion rights may not be taken as fundamentally both of these things. Now for the two American inquirers. T o Thomas Cooper, friend and correspondent of Jefferson, belongs the credit of being the first American to come directly to grips with the semantic and political problems presented by this so ambiguous term, natural law. Nicely distinguishing between "natural law" and rights legally guaranteed because socially useful, Cooper addresses himself to the double ambiguity, political as well as semantic. Cooper was president of South Carolina College, professor of chemistry and political economy. He speaks out boldly, with analytical precision, as a college president and a professor ought to do, and, too often, does not. Political economy was a new subject then. Cooper had this to say as logical peroration. We must analyze the words we use, and the ideas that enter as elements into our maxims and assertions before we can think clearly and therefore truly on the subject. We must do as the chemists and mathematicians do: we must separate each simple substance of the compound, and each function of the problem to be solved; we must convert popular words and phrases into accurate and technical expressions, and use them in a determinate sense. Experience has long since taught us that we can in no other way arrive at accuracy in any science. Political economy requires this.41 How like a fresh breeze these words blow through the fog of natural law ideasl

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T h e legitimate aim of all politics is the greatest good for the greatest number. . . . This, then, is the true origin of moral obligation, whether applied to national aggregates of individuals, or to any individual of the number. For what stronger or higher obligation can be suggested than to pursue and practice systematically those rules of conduct which can most effectually and permanently secure our own happiness on the whole? What higher or different motive can we have? 42 . . . All rights are the creatures of society, founded on their real or supposed utility, and requiring the force of society to protect them. All duties and obligations arise from our relations to cach other. T h e very terms—right, duty, obligation, law—are relative, . . . A right is . . . that which is commanded, ordered, directed. T o be effectual, it must be the command of a competent authority,— of a superior who has the means of enforcing it. A right abstracted from the power necessary to protect it is a nonentity. A right founded entirely on the power of ordering, commanding, directing, wants the great principle of voluntary acquiescence founded on a conviction of its utility. All laws, therefore, are the directions and regulations of a body of men, combined for mutual convenience into a society or community, prescribing what is for the common good, and enforcing obedience by their combined power. It may not always be true that laws are in fact of that description; but they are always presumed so to be, in whatever manner they are enacted. 43 Hobbes said: "It is not wisdom b u t authority that makes a law . . . N o n e can make a law b u t he that hath the legislative power." 44 Theoretical writers like Grotius, Puffendorf, Barbeyrac, Heineccius, Vatel, Rutherford, Burlemaqui, and others, boast of a law of nature or nations existing. When was it enacted? By whom? Or by what power has it been sanctioned? [In other words, point me out a referent for this concept.] What is called the law of nature consists of systems fabricated by theoretical

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writers, on a contemplation of what might be usefully acknowledged among men as binding on each other. The law of nations is the same. It exists nowhere but in the closet speculations of well-meaning writers as to what might be usefully acknowledged by monarchs as binding on each other.45 Here is a very nice debunking of the rationalistic derivation of the natural law. Cooper will not allow the natural law—ambiguous and fanciful as it is—the slightest prestige as higher law or as a source of rights. Law becomes law, he says, when it is enacted. It is enacted with the intention of promoting the happiness of citizens who set up and validate the enacting machinery, not with the intention of hewing to the absolute essence of man. H e questions the efficacy of a law of nations which has no enforcing power behind it. If this strikes us as cynical, we have but to recall certain desperately important "little scraps of paper" which in the last thirty years or so have not proved binding. Cooper writes from a stern rectitude, a stern resolve. He is determined, as he himself says, to analyze the words he uses and the ideas that enter as elements into his maxims and assertions, to convert popular words and phrases into accurate and technical expressions, and to use them in a determinate sense. His thoughts come as more than a fresh breeze. They come as a rushing and a mighty wind, down through the years and out from the vapors of a priori indétermination. Cooper prepares the way for Chief Justice Oliver Wendell Holmes, who came a century later. It is not enough for the knight of romance that you agree that his lady is a nice girl—if you do not admit that she is the best God ever made or will make, you must fight. . . . It seems to me that this demand is at the bottom of the philosopher's

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effort to prove that truth is absolute and of the jurist's search for criteria of universal validity which he collects under the head of natural law. . . . T h e jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere. . . . I see no a priori duty . . . but simply a statement of what I must do if I want to remain alive. . . . If I live with others, they tell me that I must do and abstain from doing various tilings or they will put the screws onto me. I believe they will, and being of the same mind as to their conduct, I not only accept the rules, but come in time to accept them with sympathy and emotional affirmation, and begin to talk about duties and rights. . . . No doubt, behind these legal rules is the fighting will of the subject to maintain them, and the spread of his emotions to the general rules by which they are maintained; but that does not seem to me the same thing as the supposed a priori discernment of a duty or the assertion of a pre-existing right. . . . It is idle to illustrate further, because to those who agree with me I am uttering commonplaces and to those who disagree I am ignoring the necessary foundations of thought. T h e a priori men generally call the dissentients superficial. But I do agree with them in believing that one's attitude on these matters is closely connected with one's general attitude toward the universe.4" T h i s , it will be recalled, was the intent of the first chapter of my book. T h e free institutions of democracy, it should not be denied, owe a great deal to the doctrine of natural law, as it has come down to us from ancient times. It may be questioned, however, whether they owe it to the doctrine of natural law intellectualized into a metaphysical p r i n c i p l e —

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a metaphysical principle which is somehow reflected back into men's asking eyes by a universe imbued with it. T h i s is directly questioned here. Rather, it is here proposed, democracy's debt is to what has been noted as a shifting phenomenon, namely that a limit has been built up in the minds of freedom-loving men—not always the same, perhaps, but always on the alert—beyond which it is not safe for governments to go. Unless man has been, to use Paine's word, "unmade," he will not submit to frustration by government. He will not submit to government's blocking him in the satisfaction of his fundamental needs, foiling him in the realization of his fundamental interests and his will to common good. Natural law, insofar as it is meaningful at all, is a word which has been used to name something easily verifiable in history, something undying in the human race: the insistent choice of freedom, even at high cost. For without freedom man cannot be happy and cannot build a good society within which to develop himself. Natural law has been a rallying cry, a slogan, in this interest. Like all slogans it has a somewhat different appeal to all who use it and all who hear it, often a different meaning. Yet it urges or drives men forward to attain the quest. Its meaning varies; its results may vary; but the feeling it arouses is the same. This is the "sympathy and emotional affirmation" Holmes noted. Robert Maclver suggests something very similar in The Web of Government (using the word myth to signify "value-impregnated beliefs men hold and live by"). " T h e myths that sustain and reinforce a social order are no longer those that successively brought into being the constituent relations of that order. . . . T h e

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myths of government are eternally changing in eternally changing situations." 47 This applies to the great myths, such as natural law and utility, as well as to lesser myths along the way. T h e deep-seated and widespread urge to freedom would have dominated, it is safe to say, had it never been tied into a loosely conceived package and labeled natural law. But natural law was a view halloo while its efficacy lasted. Now historical analysis, semantics, and good plain common sense hail the view halloo from its covert, even as the view halloo in past situations hailed the fox. Erroneous thinking has not always been wasted. Time was when a dust storm was interpreted as some peevish god kicking up a fuss. Yet this theory had its usefulness, for it served to rivet attention on the workings of nature till questions came out of it that pressed for an answer. Now especially, revolted as we have been by the planned bestialities of dictators, it would be comforting to believe that man is protected from his own lower nature by something infallibly noble within his own breast. We should like to believe that his will to evil can be controlled by a natural law which acts as a kind of retaining wall. We should like to believe that he is a being whose essence sheds bestiality as a duck sheds water. But it is more invigorating—it does arouse us—to take an opposite view and to think that men are beings who, even though they were to steel their minds against all transmundane essences, by indomitable effort could fight down the beast in themselves. Cannot man order his life on a humane level by the force of intelligence and sympathy and will? We still believe that he can.

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T h e purport of what has preceded in this chapter is that natural law ideas were loosely used and stretched to their utmost during the pre-Revolutionary and Revolutionary periods of American history. T h e y were not rigorously analyzed nor seriously questioned in the period of struggle connected with formulating and adopting the Constitution. T h e y have been used since then, especially in the slavery controversy, both pro and con. T h e eighteenth century, however, saw both the heyday and the dwindling away of natural law on this continent. From the quotations given from influential Americans of that time who have been thought to be natural law thinkers par excellence, it should be clear that these men were not employing the concept in a purely metaphysical or transcendental sense. T h e y used it vaguely and often doubtfully as undergirding and additional support for other arguments. In fact, in its most general use, the law of nature, often reinforced by the law of God, was conjured u p as secondary, not primary, source of those "natural and inalienable rights" which the colonists so much needed to believe in. T h e primary source, without a doubt, they found in the charters and common law of England, especially in Magna Charta. Charles H. Mcllwain, in The High Court of Parliament, quotes from one of the pamphleteers of the Revolution in England: " 'Tis from the Statute-Book, not the Bible, that we must judge of the Power our Kings are vested withal, and also of our own obligations, and the measures of our Subjection." 48 Mcllwain then goes on to say, "Writers of that school could just as well have substituted the 'law of nature' for the Bible in this statement."

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It is the thesis of this part of Mcllwain's book that the English common law was not a body of law enacted by a legislature. It was a collection of records of law administered in the King's Court. T h e s e records, having come to be generally known, were held to be "common law" largely because of the uniformity of legal procedure throughout the kingdom. T h e Common Law was thus, in the main, the product of a court, not a legislature. . . . Such customary laws as these, declared by inquest or Council, hardly ever ostensibly altered, with no assignable beginning, must almost of necessity in process of time acquire a character of inviolability. . . . T h e feeling has somehow come into existence that there is a law fundamental and unalterable, and rights derived from it indefeasible and inalienable. T h e content of the law may not be definite—in England it was always far from definite,—but the idea has lodged in men's minds as a formative principle, and once lodged it colors everything. [Social crises or a benevolent king from time to time caused the records of common law, regarded as conferring protection to the people, to be set down in a charter, and so secured to the people.] Among the documents of feudal times Magna Charta, of course, stands pre-eminent. Whatever be the true character of that great document, whether it be really statute, treaty, private compact, or declaration of rights, it is strictly true, as Stubbs says, that "the whole of the Constitutional History of England is a commentary on this charter." T h e view maintained here is that Magna Charta is in the main a promise on the part of the King, in the usual form of a royal grant, that in future the customary privileges, franchises, and liberties of the barons shall not be infringed as they had been in the past. . . . Why, then, its great importance? Simply this, that in it was embodied the principle of a fundamental law, a law with a penalty attached. 19

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The charter made it clear that this fundamental law was enforceable. It came to be regarded as inalienable, in the sense that, were the attempt made to alienate it from the people who had won it, they would become turbulent. For the sea of liberty is a "turbulent sea," as Thomas Jefferson said. The Common Law is pictured invested with a halo of dignity, peculiar to the embodiment of the deepest principles and to the highest expression of human reason and of the law of nature implanted by God in the heart of man. . . . The Common Law is the perfect ideal of law; for it is natural reason developed and expanded by the collective wisdom of many generations. . . . How preponderant, in the idea of fundamental law, custom was over a priori reasoning may be easily seen from the whole course of English legal history.50 It was this fundamental law and this attitude towards it which the colonists took with them to their new home, a fundamental law from which they never disengaged themselves, which they made peculiarly American, and much of which they incorporated into the new constitution. But for a policy of desperation and the necessarily polemical nature of their writings, the colonists and the early Americans would not, in general, perhaps, have thought it necessary to bring in the doctrine of natural law at all. The source of the natural and inalienable rights which the Americans claimed and clung to was not to be found in first principles, known a priori. These rights were not read out of the original genus man, but out of English history. That the Americans knew this follows from their having, themselves, cited the charters, the common law, and Magna Charta. Because of their piety

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and deep religious sense, God was mentioned, and, so that no stone should be left unturned, natural law. The tension between the meaning of Magna Charta and the natural law idea had been brought with the colonists from England, record of an earlier struggle for liberty. T h e colonists were minded to claim both of these as strengthening their cause rather than to discriminate. William Walwyn's words, written in 1645, or at least their substance, would have been recalled. Magna Charta (you must observe) is but a part of the people's rights and liberties, being no more but what with much striving and fighting, was by the blood of our ancestors wrestled out of the paws of those kings who by force had conquered the nation, changed the laws, and by strong hand held them in bondage.51 There were realists in those days, too. Henry Ireton, Cromwell's son-in-law, had written: "If you will resort only to the law of nature, by the law of nature you have no more right to this land or anything else than I have." S2 So the colonists resorted not only to the law of nature but also to the law of nature. Natural law, then, with all its ambiguity, in a measure that shifted with time, and place, and social mood, came to be thought of as some part of the guarantee of the fundamental law of America. This was not a new role for the law of nature—if anything could be. In the time of Grotius and prior to that time man's basic social and legal arrangements had been thought of as a "fundamental pact" which was "the normal origin of legitimate sovereignty." The doctrine of the "fundamental pact" as die jural basis of government had long been maintained, especially in England,

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where the constitution, historically established, readily suggested such a compact. At the same time the remarkable success of Grotius' treatise (De jure belli ac pads) brought his view of Natural Right into prominence, and suggested such questions as—"What is man's ultimate reason for obeying these laws? Wherein exactly does their agreement with rational and social nature consist?" 5 ' T h e two classic types of answer are available, to be chosen according to the chooser's own mental make-up, "the shape of his head," which would guide him not only here but even in his "general attitude towards the universe." One type of thinker would ascribe the ultimate reason for his obeying these laws to the fact that they had proved useful over a long period. T h e y had been accepted and adapted to as "Hobson's choice," perhaps, or enacted as promoting man's growth and development or worked out as contributing to the general happiness, or "good." Another type of thinker would ascribe the ultimate reason for obeying these laws to the fact that the enactors of these laws had somehow, in a very clever way, ferreted out the essence of man's original nature and made these laws to express it more fully. But no type of thinker, logically speaking, is entitled to both of these as the ultimate sanction of law. Nor will either type compromise. T h e s e two as ultimates are a dichotomy: either . . . or . . . but not both. Acceptable laws do conform to man's nature, I suppose, since they were enacted by man for man, not—to descend to the ridiculous—by a creature of a different nature for man or by man for a creature of a different nature. In this sense man's interests, needs, conflicting desires, and anything else he has with a future to it are reflected in the laws he makes

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to govern the future. Indeed, in the measure that his laws reflect his general interests, needs, and desires, and acceptably resolve his general conflicts, in exactly that measure they are acceptable to him and are said to be "just." T h i s way of looking at laws and man's willingness to abide by them, brings up more insistently the question of justice. It does not hold that justice is a part of the universal scheme or a "part of nature." What, then, is justice for this way of thought? It is not easy to make a definition of justice. But it should not be impossible. As peroration I should like to quote from Hans Kelsen. "Justice is social happiness; it is happiness guaranteed by the social order. . . . T h e desire for justice is so elementary, so rooted in the human mind, because it is a manifestation of man's indestructible desire for his own happiness." 54 Aristotle, too, should be remembered here. "In one sense we call those acts just that tend to produce and preserve happiness and its components for the political society." 65 Justice, as the state's responsibility, is something which the state is charged with doing. It is of social import. It is the business of giving to every man his due, so that, in all fairmindedness, he may be content, and may continue, if possible, a productive member of society, in loyal allegiance to the state. Concerned to administer justice, the state tries to maintain the balance between the conflicting interests of individuals or of groups who look to the state to act as impartial moderator between them, or among them. It submits their interests, desires, needs, and claims to legal analysis in courts of law, equalizes according to law, as far as it can, the encroachment of these opposed claims upon

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each other or upon the state, and awards to each claimant his due. A man's " d u e , " thus conceived, is taken to mean as m u c h of what he desires as is consonant with his opponent's receiving an equal measure, under the law, of what he desires, and consonant also w i t h the public good, many things b e i n g taken into account. It is such unbiased and socially m i n d e d consideration by the state, s u m m o n i n g law as the final harmonizer and determiner of these matters, which alone is able to give each m a n his due, or a just decision. T h i s is not an a priori concept, but an ex post facto analysis of what a good state tries to do in the field of civil justice. C r i m i n a l justice, restraint and punishment of injustice, is closely related, b u t need not be discussed here. Justice, as a concept, is the concept of such concern and such action by the state, or (often without the ministrations of the law) by an individual or a group. It is the record of growth in practical, social thinking. Justice, as a fact, is the consistent expression in h u m a n thinking and in h u m a n affairs of such concern and such accomplishment. If some such definition of justice as this is kept in mind, it will be easy to relate it satisfactorily to all those political and legal incidents which to a certain kind of thinker seem explicable only in terms of something he likes to call the "law of nature." Surely it must be clear, if w e give a practical meaning like this to justice, that we have a usable, assessable, and applicable criterion. Whereas we have n o criterion at all if we undertake to mean by justice some mysterious co-ordination " i n nature," with expressions also in man, which man can somehow deduce and incorporate in

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his legal enactments. A f t e r all, if a law does not " w o r k " because the citizens feel that it interferes with their happiness w i t h o u t accomplishing any commensurate

good,

it can be scrutinized and modified or repealed within that easily understood frame of reference. But if a law does not " w o r k , " and if it is t h o u g h t not to work because it infringes on a mysterious and equivocal law of nature, or " h i g h e r l a w , " and thought that it can b e effectively altered only if legislators will study the law of nature, and if it is at the same time forced u p o n attention (as it should be) that this law of nature means something different to practically every user of it and to all users something extremely vague, how is it. possible to improve our laws, within this or any other f r a m e of reference? L e t us turn attention for a m o m e n t to a famous trilogy of decisions of the S u p r e m e C o u r t of the U n i t e d States, handed d o w n in the first years of this century. 5 6 In m a k i n g these decisions, which in effect place a limit on what has b e e n termed "the police power of the state," the court has been said to have been leaning on the law of nature, " o n e of the oldest and most important conceptions in the history of political thought, and g i v i n g to that concept a distinctly A m e r i c a n meaning." Y e t it is impossible to see why the court's motive in l i m i t i n g the police power of the state cannot be very simply seen as g r o w i n g naturally out of the long English and American quest for fiercely desired liberty. T h e individual need not be apotheosized in order to want to be free. Most animals w a n t their freedom, and the AngloSaxon human animal was smart enough, in the circumstances, and bold enough, " w i t h much striving and fighting

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. . . to wrestle out of the paws of those kings who by force had conquered the nation" such a measure of it as seemed consonant with his safety. Jefferson's mot in which he called "that government best which governs least" emerged out of this great wrestling match, waged on two continents. It has been a part, certainly, of our American tradition. (May it so continue!) T h e liberties which the individual won from the sovereign, whether king or state, and thenceforth held inalienable, cannot survive under an oppressive state. There is no need to cite here anything so ambiguous as the law of nature. These three famous cases may briefly be reviewed. In "Lochner vs. New York" the court decided for Lochner, a baker, declaring that in the State of New York's ruling that a baker should not work more than sixty hours a week "the limit of the police power of the state has been reached and passed." In part the decision, written by Associate Justice Rufus W. Peckham, stated: " I t becomes of great importance to determine which shall prevail—the right of the individual to labor for such time as he may choose, or the right of the state to prevent the individual [even for hjs own good] from entering into any contract to labor beyond a certain time prescribed by the state." Associate Justice John M. Harlan's decision in Adair vs. T h e United States similarly holds for the individual. It is the constitutional right of an employer to dispense with the services of an employé because of his membership in a labor union, just as it is the constitutional right of an employé to quit the service of an employer who employs non-union men. . . . There are certain powers existing in the sovereignty of

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each state of the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. These powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. I n thus limiting the said police powers, the United States S u p r e m e Court shrugged off paternalism in government, choosing freedom instead. I n the ease of Coppage

vs. Kansas,

which was similar to

the Adair case and dependent on it, Associate J u s t i c e M a h l o n Pitney had this to say. Of course we do not intend to say, nor to intimate, anything inconsistent with the right of individuals to join labor unions, nor do we question the legitimacy of such organizations so long as they conform to the laws of the land as others are required to do. Conceding the full right of the individual to join the union, he has no inherent right to do this and still remain in the employ of one who is unwilling to employ a union man, any more than the same individual has a right to join the union without the consent of that organization. . . . T o ask a man to agree, in advance, to refrain from affiliation with the union while retaining a certain position of employment, is not to ask him to give up any part of his constitutional freedom. He is free to decline the employment on those terms, just as the employer may decline to offer employment on any other; for "It takes two to make a bargain." T h e s e rather lengthy quotations have been thought justifiable here for two reasons. In the first place, the fact that the law of nature has been cited as the ground for these c o u r t judgments will indicate afresh how wide of the mark such citations may be. F o r there is nothing in these decisions

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which cannot very simply be accounted for out of the history of man's hopes, purposes, and achievements. If we want to take the law of nature as a summing up of that whole history—and, indeed, it might be so taken—then it is applicable. But why stigmatize these decisions with a name which is notorious as a kaleidescope of equivocation, when the simpler criteria, utility and growth, apply as well and reveal much more? In the second place, these cases are cited because the term "police power of the state" is an example of something now to be discussed, namely, the indefinite character of certain concepts frequently used in the law. As earlier philosophically inclined jurists have done, Sir Frederick Pollock comments on the use, in law, of such considerations or concepts as "reasonable" price, "reasonable" time, "reasonable" damages—terms vague, indeed, it will be admitted. T h e term "police power of the state" is similarly indeterminate. Yet the law seems to make out with such terms, somehow or other. Why, then, cavil at the law of nature, it may be asked, when positive law is full of these fluid phrases, the content of which must be specified in each instance of use. Pollock does not hesitate to link these inexact terms, chiefly as they make use of the word "reason," with the law of nature itself.58 He is influenced here by an interesting work Doctor and Student, written by Christopher St. German about 1520, a learned and accurate statement of the common law as it then stood in England and also with it an attempt to reconcile common law and canon law. The Student gives the law of reason as the first of the general grounds of the law of England, and in answer to the Doctor's

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inquiry where he puts the Law of Nature, he explains that in the Common Law that term is not in use, but that where the canonist or civilian would speak of the Law of Nature, the common lawyer speaks of reason.59 Thus natural law may fairly claim, in principle though not by name, the reasonable man of English and American law and all his works, which are many.60 Surely, Pollock is not tossing all these indeterminate legal expressions into the nebulous arms of the law of nature on the theory that this will help to give them precision. For the term law of nature, unless defined with exactness, might itself, because of its extreme confusion, be held actually to define a "null class" in political philosophy or a logical class without members. Furthermore, we may well hesitate to take Christopher St. German's word for it that "reasonable" in the law stands for or stems from the law of nature. It would seem that this learned man had not really examined this concept with the rigorous logic and semantic tests required to reveal its multiform and equivocal meanings; and for good reason. In the sixteenth century the law of nature was hardly questioned. Once it is questioned, once its lack of any terse meaning is revealed, the law of nature is seen to be altogether indecisive. It is not part of this book's plan to resolve the vagueness, in legal phrases, of "reasonable" or any other such controvertible term. The law does make out with them, somehow or other. They are undefined; and that, for the scope of this book, is that. It is, however, of great importance to point out that, vague as they are, they make no claim to be a "higher law." But this claim is made for the law of nature.

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It is asserted by "natural law thinkers" that the law of nature is a higher law which can validate or invalidate the enactments of positive law, a kind of major premise from which sound positive law is drawn. 61 Yet lack of precision and lack of clarity vitiate the natural law's usefulness in this role. As Aristotle pointed out in the Posterior Analytics, the premises of demonstrated knowledge must be better known than the conclusion; and certain it is that the vagueness of the law of nature would on this score alone prohibit its being used as premise. A term meaningless itself cannot confer precision of meaning on a concept the meaning of which is left open. Nor can the law of nature have "logical priority over the forms of law" (which some have claimed for it), because logical priority demands clarity, ex officio as it were, and the law of nature (to repeat) is unclear. As for "reasonable" in legal expressions, it is best taken to mean something like acceptable or expedient, where acceptability would emerge out of the whole complex situation. T h e "reasonable" man would be the normal man whose judgment, in a particular case, would be thought trustworthy. A "reasonable man's caution, foresight, or expectation" would be caution, foresight, or expectation acceptable as the norm. As for a "higher law" which is required to validate or might have power to invalidate a law enacted, it should be said again, perhaps, that "it is not wisdom, but authority that makes a law. . . . None can make a law but he that hath the legislative power." Furthermore, legislative power makes law which legislation alone can invalidate as law. For "to agree to do a thing, reserving the right to omit it if

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one thinks best, is not to make a contract but to crack a joke; and, if no other contract is possible among men but of this kind, the word has no meaning." 82 Sir Frederick Pollock is inclined, as others have been, to find in natural law the grounds for that phenomenon of English and American law called equity. He would also seek in natural law the grounds for whatever legal policy holds in those "extensive territories under British dominion in which English law has never been received as a whole." T h e term natural law has been used to cover such administrative legal policies. The most remarkable example is afforded by British India. Here we find that the Law of Nature has played a singular and almost paradoxical part. It has been the means of effecting a large importation of English ideas and principles in regions where formal Common Law jurisdiction was not only not asserted, but formally disclaimed. . . . A Bengal Regulation of 1793, substantially copied at various intervals of time in other Presidencies and provinces, laid down that in such cases the judges were "to act according to justice, equity, and good conscience." These words, down to the end of the Eighteenth Century, could only be read by any publicist or trained lawyer as synonymous with the Law of Nature. . . . An Englishman would naturally interpret these words ("justice, equity, and good conscience") as meaning such rules and principles of English law as he happened to know and considered applicable to the case. . . . Equity and good conscience, we are told by the Judicial Committee of the Privy Council, are generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances.63 If this be the law of nature, it is the empirical law of nature in the tradition of Aristotle, not the transcendental law

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of nature in the rationalist tradition of Cicero, or "the higher law" of European jurists, or of the scholastic approach. "Justice," as used here, surely refers to the law as understood by the judges who were called upon to administer justice, and, since these were Englishmen, English law would be basic in their decisions. Equity still has this nontechnical meaning as laymen use the term.64 T h e technical meaning of equity in English and American law today, however, in nearly every instance is as much a matter of precedent and court rules as the common law is.85 Equity in this relation will be more fully discussed in Chapter IV of this book. All this seems far removed from metaphysical considerations. The plaintiff in these presidencies and provinces did not know enough to claim the law. The judges were instructed to claim it for him if he would avail himself of its ministrations. Let us turn now to the American colonists who sought to build a federated republic on a new continent. They did know enough to claim the law. They knew that it was the history of man's struggle for freedom and the record of his winning as much of it as he had won, written in blood and written in statutes. They claimed as much of it as they knew, and claimed also whatever additional undergirding of human liberty an undefined law of nature, with utilitarian connotations, could give them. I do not at all intend to say that as the American colonists used the term natural law its meaning was so tenuous as to be neither true nor false. Ralph Barton Perry has the right of it as he says: "If the terms 'laws of nature,' 'God,' 'self-

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evident,' 'rights,' 'equality,' 'just,' and 'happiness,' meant anything to the Americans of 1776, then the propositions containing these terms were of necessity either true or false." 88 Certainly these propositions as each thinker formulated them for himself, if he formulated them carefully, were either true or false propositions. But taken as a possible meeting point for many minds, or taken as pooled experience, the metaphysical natural law concept, as the American colonists used it, was so vaguely and so ambiguously formulated as to be objectively neither true nor false. If the emotion aroused was univocal, then the concept was a strong dynamic. In so homogeneous a community it was univocal. It seems fair as I terminate this chapter to quote again the statement with which it opened, which was then called "reassuring," a part of which, at least, we may now feel more soundly entitled to. " T h e traditional or metaphysical approaches to an understanding of the law [of nature] have had little vogue . . . in America." It can hardly be doubted that the same might be shown for England. Our American forefathers were not concerned to deduce by the powers of reason a "higher law." Rather, they were concerned to trace and clarify and claim and use that fundamental law which had its roots in English soil. This fundamental law they sought to transplant to the American continent, free of its entanglements with king and Parliament beyond the sea, so that it might bear fruits as well for America. When ancient rules maintain themselves in the way that has been . . . shown in this book, new reasons more fitted to the

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time have to be found for them, and they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted. [These words of Chief Justice Holmes strikingly apply to natural law ideas as they were brought by the first Americans to this country. Finally, he writes off the transcendental in no uncertain terms.] . . . What has been said will explain the failure of all theories which consider the law only from the formal side, whether [or not] they attempt to deduce the corpus from a priori postulates. . . . T h e study upon which we have been engaged is necessary both for the knowledge and for the revision of the law." This, and the quest for simple truth, I shall let stand as sufficient reason for the chapter just completed.

IV. The Pattern

T

HIS chapter may well begin with a recapitulation of the ground which my book, so far, has attempted to cover. Two world views were traced in Chapter I. One of these world views is based on a concept of the universe as structure imbued with idea, unified by idea, fashioned and bounded by mind. T h e other is based on a concept of the universe for practical purposes known only as a "strung along" or pluralistic process, some parts of which our human minds through science have made good headway in trying to fathom. Which of these world views a man holds, which "general attitude towards the universe" a man espouses, will be the key to far more than his world view. It will indicate, above all, the method by which he arrives at his conclusions. T h e first man will rely primarily on reason to report upon a universe which he believes through-andthrough to conform to his reason. T h e second man will rely primarily on a more down-to-earth and verifiable kind of experience. T h e method he uses to arrive at an understanding of the universe will be the method he uses to understand humanity. T h e first type of thinker is the a priori man—though certainly not that alone. T h e second type of thinker is the empirical man. T h e "a priori man" conceives that by a ra-

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tionalistic tour de force he can deduce from a "certain disposition" his reason discovers in nature what is the absolute essence of man. He sees this absolute essence imposing a "natural law" upon mankind, an "eternal and unchangeable" command to mankind to act in accordance with their true nature. T h e empirical man finds out most of what he thinks he knows about man by empirical methods. He does not find an absolute essence; he does not deduce a natural law. He finds an active creature in a shifting scene trying to shape to his liking, as far as he is able, the world in which he lives. He sees man in a social setting trying to win for himself and his fellows happiness and social prosperity and a chance to develop. This concept of man, as an active creature in a shifting scene trying to shape to his liking the world in which he lives, lends itself readily to the concept of the democratic state governed by the people for the people. It has seemed to me that no other concept of man could so well as this empirical concept account for the republican form of government, the "new nation" which our fathers brought forth upon this continent. Yet enough was written by the founders of this new nation about the "law of nature," as the a priori dynamic of their building, to send me to the sources to find out what our fathers meant by this term "law of nature." T h e sources are replete with this phrase, replete with instances in which the law of nature is cited by our forefathers as their authorization for building this new nation. Chapter II was an examination and an exposition of this term's usage. It was found to have been used in an ambiguous sense. There is a meaning for it which is not ambiguous.

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This is the meaning given by Aristotle and by others, namely, to designate a loose pattern of laws which seems to be tacitly agreed upon by the human race as a basic provision for a nation's or a society's practical functioning and for its minimal contentment. In the last analysis, it is the utilitarian meaning which gives this particular concept its clarity, assuming or asserting that this pattern of laws is worked out with the purpose of binding society together in the way most beneficial to all. It should be repeated here, however, that where this utilitarian meaning is attributed to the term "natural law," the second, opposed meaning, because of the term's history, is apt to creep in to confuse the issue. T h e interloper is the transcendental and rationalistic meaning given by Cicero and by many others. Especially is this true where there is need for a powerful rhetorical "punch." If the transcendental meaning creeps in occasionally when the term is used in a utilitarian sense, the utilitarian meaning creeps in even more regularly when the term is used in a transcendental sense. Of the transcendentalists examined in this book, namely, del Vecchio, Stammler, and Maritain, it is the neoKantians who, though well within sight of a practical interpretation, come nearest to cleaving to the unmixed transcendental. Del Vecchio, and Maritain, as was shown, because they cannot hold to the transcendental and still use precise terms, exhibit almost contradictory semantic ambiguity. In classic examples of the transcendental position— for example, Grotius—one finds such an inadvertent pot poarri of meanings as to defy univocal analysis. Grotius is, indeed, a strange mixture of the utilitarian and the ra-

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tionalistic. It is this prevailing ambiguity, initially, which makes it so difficult to draw out and examine the interwoven meanings given to the term "natural law." Our American Founding Fathers and others who have been styled natural law men of their period not only used the term natural law thus ambiguously, but also themselves seem to have recognized, as did Rousseau on the Continent, the deep confusion intrinsic to the concept. Jefferson and Wilson were quoted to this effect. Hamilton, Madison, and John Adams were shown emerging into the clear as they gave the term a utilitarian meaning. Furthermore, it is known to have been John Adams 1 who, making corrections in Jefferson's "fair copy" of the Declaration of Independence, substituted for the phrase "that all men . . . are endowed by their Creator with inherent and inalienable rights," the far less metaphysical phrase, "that all men . . . are endowed by their Creator with certain unalienable rights." T h e change from "inalienable" to "unalienable" is thought to be no more than an error in copying. But the idea that certain rights are inherent in men would seem to suggest the law of nature in the transcendental sense of the term: inherent in men because they are men. Whereas "inalienable" is open to the kind of interpretation given by Charles Howard Mcllwain. 2 Indubitably Adams' deletion of the word "inherent" is a step away from the transcendental. True, the Declaration of Independence does mention in its first and second paragraphs such equivocal matters as the Laws of Nature and of Nature's God, self-evident truths, and inalienable rights conferred upon all men by their

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Creator. Later in the second paragraph, however, there is affirmed man's right to abolish oppressive government "and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem likely to effect their safety and happiness." Thus, at the very source, a utilitarian object is cited for our American statecraft. Continuing to recapitulate, we refer again to the politically and semantically therapeutic work of Thomas Cooper. Thomas Cooper took the trouble to work out a profound and penetrating analysis, as far as he could, of the roots of confusion in the term natural law, citing as the first snag the lack of definition, and as the second, the vagueness of a transcendental concept, based on intuition and calling itself a "law." Indeed, it seems to me that the first, chief fallacy lies in the looseness of meaning of the word "law." T h e word law has two very different meanings. In one sense it designates an observed pattern; in the other it designates a compulsory rule laid down. An example of the first use of the word law may be found in the law of the conservation of energy, in other scientific laws of physics and chemistry, and in economic laws such as the law of supply and demand. There is no compulsive authority behind such laws as these. They are merely classifications of observed data according to a principle of similarity: classifications which show such uniformity as to make us feel justified in predicting continued uniformity. An example of the second use of the word law may be found in any edict with power behind it. This type of law

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requires authority before it can be called law. Authority is altogether beside the point in the laws of physics and chemistry; and in economic laws, such as the law of supply and demand, authority would merely block their functioning. It is evident that del Vecchio is subject to this very confusion when he says: "Truth does not begin at the moment of its recognition, and, to use a classic simile, the law of the equality of the radii governs before the circle is drawn." 3 Here del Vecchio slips into the first meaning of the word law, crowding it into the context of the second and legal significance. He is worse confused than that, for the law, as he calls it, of the equality of the radii of a circle is actually the definition of a circle. Indeed it does "govern" before the circle is drawn to that specification. This deep-seated ambiguity in the word law accounts initially for much of the equivocation we have noted in the concept "law of nature." All those factual and utilitarian interpretations of the law of nature belong to the first type of "law." T h e "natural justice" of Aristotle, for example, was merely a pattern observed: "all those unwritten principles which are supposed to be acknowledged everywhere." 4 In these factual interpretations no "higher law" concept is even remotely adumbrated. T h e "higher law" idea belongs to transcendental natural law: the jinx here is not traceable to a clash of meanings, but rather to a rationalistic overreaching, an exaggerated notion of what "reason alone" can do. Whatever it can do, it certainly has not done it. There is neither clarity nor uniformity in the metaphysical and transcendental flight of fancy which holds that all men everywhere would have the same, and a communi-

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cable, and a detailed, and a binding idea of what is essentially human. In a general and cursory way, from their empirical observations of men, they could agree on what is human, just as in a general and cursory way, from empirical observations they could agree on what is canine—or leonine —or simian. But beyond this, disagreement would be widespread and separative. Any lack of clarity lurking in a concept shows up as we seek its referent, seek to find exactly what it refers to. If it is clear, it has a referent. If it has no referent that can be agreed upon, it is not clear. It is here contended that that is exactly what is the matter with the term "natural law" taken as transcendental and metaphysical: it has no referent. For this reason there can be no agreement as to its meaning. It strikes a responsive cord in many minds, but it never strikes a clear note. "The law of nature deduced by reason alone from man's essential nature" does not refer to any univocal concept. It bogs down at many points. But it bogs down most fatally on the word "man." Only the Deity can be mindful of "man." And even here the psalmist asks: "What is man that Thou art mindful of him?" De Maistre is not the only one, forsooth, who has said some such thing as this: "I have seen, in my time, Frenchmen, Italians, Russians, etc.; but as for Man, I declare I never met him in my life; if he exists, it is without my knowledge." It seems hardly necessary to remark in this connection that the word man has a collective meaning which is both legitimate and clear, as well as the abstract meaning to which, as used in a natural law context, exception is here taken. The collective noun has a collective referent. It stands

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for men everywhere, men in general. It is a noun of vigor and, though general, of precision. The abstract noun is far less precise. T o designate a source of higher law it is totally unacceptable. Collective man, indeed, has too much vigor to yield up to unaided reason a deducible nature. Abstract man has not enough. For an empirical interpretation of natural law, as it has been defined in these pages, there is a referent. Aristotle found it first, and others have found it since then: a general pattern of law-making which men have seemed inclined to follow. For a transcendental interpretation of "natural law" there is no referent. It is a hazy something about Man which men have not agreed on. The empirical meaning is not "extended," as we say in logic, beyond the point where its intention is clear. The transcendental meaning is, surely, overextended and overreached, till its intention is lost in a miasma of vagueness. If the "law of nature" is poetry, more power to it. But, if it is, it is unsuitable to be a higher law. The claim of del Vecchio and others that natural law is "inexhaustible" lends color to its identification, or at least its correlation, with poetry. Poetry is, indeed, inexhaustible. While there is life there is poetry! But a principle of legal law (as distinguished from scientific law) is inexhaustible as law only while it has behind it the authority of the legislative power. A "higher law," the intention of which is lost in a miasma of vagueness, cannot be a source of enacted law. Neither can it be another kind of legal law, because it is of the essence of all kinds of legal enactment that they be clear, that they be promulgated, and that they have authority behind them.

The Pattern "One cannot deny," Haines quotes del Vecchio as saying, "that this doctrinal tradition had a real existence and a vigorous efficacy at a time which corresponds with the formation of our legal system." 5 How true this is in connection with the formation or adoption of the legal system of the United States! Yet it was shown in Chapter III that when this doctrinal tradition was pressed into ambiguous service in the formative period of our legal system it was overridden by another concept altogether. It was overridden by the clear understanding that our legal system's prime motive is to conserve and promote the well-being of the citizens who come under it, not to conserve and promote anything so equivocal as man's essential nature. Certain it is that if there be such a thing as a concept of man equivalent even vaguely to what the law of nature is said by transcendentalists to stand for it has been won. It has been won, just as positive law has been won, throughout centuries of intelligent, courageous, unremitting struggle, despite many a set-back. Liberty and independence do not belong to man "by his very nature" any more than they belong to cattle. This is not intended asflippancy.It is dangerous to assume that they do. Mankind have won them; cattlekind have not. Mankind can hold them; cattlekind could not hold them if they had them, as we know too well. It is the history of the human race and their long struggle to win the freedom they were smart enough to know they wanted which entitles us to liberty—rather than the essence of anything rationally apprehended. Natural law doctrines, in the metaphysical, transcendentalist sense of the term, are opposed to history: that has been

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shown. They are opposed to science, also, since they claim that what is statistically "natural" is ipso facto "according to the will of God," or, at all events, that it is acceptable and right. Science is a "fixer," interested not only objectively in change for the sake of change, but interested to change things in such a way as to further the comfort, security, and happiness of society. Applied science is not always successful in this; but that is its purpose. A concept of man as a complete-and-once-for-all being is not very helpful in a changing world. Even our reason, with new things to reason about, might be considered in process, to a certain degree. T h e inhibiting effect of a static concept is not so far-fetched as might at first appear. Actually, the idea that "woman's place is in the home," for example, has probably done as much to keep her there as any other contributing factor. Let us return now to the challenge of defining the expression law of nature in its transcendental or metaphysical significance. This is the challenge to stipulate a meaning for the term which shall be cohesive and clear and usable in meaningful discourse. We should not write this task off as impossible till we have made an honest effort to give a definition in terms of what Aristotle called "genus and differentia": to place the concept "law of nature" in a class, that is, and to say what clear characteristics distinguish it from other members of that class. John Locke expressed this necessary logical process in this way: "to collect and unite into one complex idea, as precisely as possible, all those ingredients whereby it is differentiated from others, and to them so united in a determinate number and order, apply steadily the same name." 8

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It is of the essence in such definition that the definer seek the smallest class logically persuasive rather than the largest. W e need a class which is limited by some of the characteristics of the definiendum, that is, rather than an amor phous class without any special character. If we are to define a desk, for instance, it is better to begin by saying that a desk is an article of furniture, than that it is merely an object. W e ought not to begin by saying that the law of nature is a law, because, as I have shown, "law" is ambiguous. It will not be very helpful to say that it is a "concept," because that class is altogether without limit. Let us begin by saying that it is a "concept of political philosophy." But the fact that there are twin interpretations of the law of nature as a concept of political philosophy, the metaphysical and the empirical, makes this ambiguous at the start of our endeavor. W e must limit the genus further. Let us say that it is "a metaphysical concept of political philosophy." That limits it sufficiently for our purpose, and perhaps as much as we dare limit it to begin with. Now, how can it be differentiated from other concepts of its genus? It relates to man in society. But so might other metaphysical concepts of political philosophy. It is said to be deducible "by reason alone, from man's essential nature." But I believe I have shown that reason deduces it, if at all, in a snarl of ambiguities. As such, as a metaphysical concept of political philosophy deducible by reason alone from man's essential nature, this concept is altogether unusable in meaningful discourse. It is said to be unchangeable and eternal. But it has been shown to have swung to all the points of the compass, with content so variable, so conflict-

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ing, as to make it seem almost self-contradictory. If it has "summoned men to the performance of their duties," it has allegedly "summoned" them to duties as diametrically opposed as the duty to continue the enslavement of human beings and the duty to abolish the right to enslave. If its prohibitions have restrained men from doing wrong, this has not been either the univocal verdict of society at that time, nor the univocal verdict of history. T o invalidate this law of human legislation is not only not morally right, but it is, indeed, effectually impossible. So we might run through all the alleged characteristics by which this metaphysical concept of political philosophy has, in a vague way, been thought to be set apart, to be differentiated, from other metaphysical concepts of political philosophy. None of these alleged characteristics is sufficiently clear to be the catalytic of differentiation. It seems that we must abandon the attempt to give a connotative definition of natural law, a definition, I mean, which shall give its meaning in terms of concepts. Now let us try for a denotative definition, a definition which shall point out the definiendum in the way Locke, for example, pointed out solidity: "If anyone asks me, what this solidity is . . . let him put a flint or a football between his hands, and then endeavor to join them, and he will know." 7 Dr. Johnson, for another example, gave an adequate denotative definition of matter, as the inimitable Boswell records it. After we came out of church, we stood talking for some time together of Bishop Berkeley's ingenious sophistry to prove the non-existence of matter. . . . I observed, that though we are

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satisfied his doctrine is not true, it is impossible to refute it. I never shall forget the alacrity with which Johnson answered, striking his foot with mighty force against a large stone, till he rebounded from it, "I refute it thus!" In this manner Johnson made it clear what he was talking about when he said "matter." Incidentally, both the above are denotative definitions of denotative definition. It is not possible to define the law of nature denotatively, because even if those who affirm and acclaim the law of nature were to attempt to point it out, they would point to different things. It has been indicated, as I have shown, influencing thinkers to formulate logically contradictory thoughts: so they cannot be pointing to the same thing, however much they may have thought they were. The reason for this is that the term has no clearly understood referent. There is no agreeing on its meaning. T o quote Locke again: "Unless a man's words excite the same ideas in the hearer, which he makes them stand for in speaking, he does not speak intelligibly." 8 Such an unequivocal denotative definition of the law of nature cannot be given. Nor can a negative definition be given, because one would deny of the law of nature what another would affirm. Can a demonstrative definition be given in operational terms, in the sense in which operational is used on page 54, whereby a concept is fixed when the operations by which it is obtained are fixed? T h e concept of length was shown to be "nothing more than the set of operations by which length is determined." It must be apparent that in any such quest as this we are defeated before we begin. It is futile to

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hope that the concept law of nature could be clarified by showing the set of operations by which it is determined. T h e metaphysical concept of natural law is subjective, if not mystical. It is by an intuitional tour de force, which cannot be traced as an observable operation, that it is said to be derived. The operational approach to definition is thoroughly empirical. There is no possibility of defining this metaphysical concept in operational terms. "Definition by covariation" ought to be considered. If A is found to vary as B, and as B alone (though B may be composite as well as simple), either proportionately or exactly, either directly or inversely, then A may be defined, loosely but clearly, in terms of B. Such covariation would be the referent. Science uses this type of definition as a "lead," very often on the way to isolating an exact referent. Psychology uses this type of definition, and often, because of the mercurial character of the material, gets no closer to an exact referent than this. Definition by covariation is not precise, but it has its uses. "Lookl" a smart child might say; "I notice that when it gets cold suddenly there's more dew on the grass, and the colder it gets, and the more suddenly it gets cold, the more dew there is. If it's a warm afternoon and a warm night, there's less dew than if it's a warm afternoon and a cold night." It is not possible to define or to designate the law of nature in any such way as this. The law of nature varies, and has varied, as a thousand things. Most of all, it has varied with something as fluid as the rhetorical need of the pleader; and

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the rhetorical need of the pleader varies as a thousand things. So, definition by covariation, even as a promising "lead," must be abandoned. Since we cannot define the metaphysical concept connotatively, in terms of its ideational content, nor denotatively, by indicating it in being, nor negatively by indicating exhaustively what it is not, nor operationally, in terms of its operational derivation, nor even in terms of a covariant, all hope of defining it must be abandoned. We must conclude therefore that the metaphysical law is indefinable. Since we cannot define it, we cannot isolate a referent for it. Without a referent, the term is incomprehensible, or at least altogether subjective, varying almost limitlessly with subjective interpretation. But suppose it were not. Granting that this transcendental natural law were understandable, or at least partially so, what purpose would it serve? Aristotle answered this question more than twenty centuries ago. "I am at a loss," he said, "to know how the weaver or the carpenter"—or the statesman, for that matter—"would be furthered in his art by a knowledge of this absolute good, or how a man would be rendered more able to heal the sick or to command an army"—or to write the laws—"by contemplation of the pure form of idea. For it seems to me that the physician does not even seek for health in this abstract way, but seeks for the health of man, or rather of some particular man, for it is individuals that he seeks to heal." 9 And it is individual situations with which the statesman and the lawmaker must cope. If objection is taken to calling the metaphysical law of

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nature "mystical," this predicate ought to be further elucidated. A mystically derived belief always implies that the believer has intuitional access to intimate knowledge of an enveloping Realm of Being, or a Realm of being other than himself. This knowledge, for the mystic, yields the specific mystical belief in somewhat the same way that the major premise of a syllogism, once the minor premise is seen in relation to it, yields the conclusion. Jacques Maritain, for example, feels that he knows and that others can discover "an order or disposition in nature," which, once human nature is seen in relation to it, yields insight into the natural law. He feels that the inquirer into the essential nature of man, the seeker after an understanding of the law of nature, departs from this world as frame of reference and enters a supra-rational realm of thought in which he can know by intuition the truth of dogmas laid down by the church. "Above the plane of civil society, the person crosses the threshold of a kingdom which is not 0/ this world (Italics mine), and enters a suprarational, supra-racial, supra-temporal society which is called the Church, and which has to do with the 'things that are not Caesar's.' " 10 It is fair to call such knowledge as this mystical, since it conforms to the pattern of mysticism worked out by philosophers who have written on this subject, namely, such thinkers as William James, Charles A. Bennett, William Pepperell Montague, Dean Inge, and many others. It is difficult to see, however, in what way knowledge intuitionally arrived at can be taken either as a "higher law" or as grounds for a "higher law"; for such knowledge is pri-

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vate, subjective, indemonstrable, and in large measure incommunicable. This is the sum of what is wrong with the metaphysical law of nature and is the reason why, if the law of nature be accepted seriously at all, it must be taken as contentless: any content that may be claimed for it is altogether private, precluding a meeting of minds. Taken as contentless, as was shown in connection with Stammler, the law of nature is so pure as to be meaningless. T h e relation of equity to natural law in England and America was broached in Chapter III, and a promise was made to pursue the matter further. Here, in attempt, is the fulfillment of that promise. A concept of equity was current in Aristotle's time and was discussed by Aristotle as "a correction of legal justice." When the law speaks universally, and a case arises on it which is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission, to say what the legislator himself would have said had he been present, and would have put into his law if he had known. . . . And this is the nature of the equitable, a correction of law where it is defective owing to its universality.11 This definition of Aristotle's, which is the ancient Greek meaning of equity, will stand even today, I believe, if it be understood that "over-simplicity" refers to omissions, rather than to legal elisions of the interests of the individual such that the judge might feel at liberty to decide the matter according to his free discretion or "grace" or fair dealing. True, such phrases as "discretion" and "grace" are diffused throughout the history of equity as it developed in

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England. Such maxims of equity as, "Equity does not suffer a wrong to be without a remedy," "Equitable remedies are discretionary," "He who seeks equity must do equity," "He who comes into equity must come with clean hands," "Equity looks to the intent and not to the form" all suggest a procedure more idealistic, less stringent, less technical than a legal code. Certain aspects of equity, it is true, especially its history before it was consolidated as a distinct department of English law, suggest that its function and operation were originally more a matter of the judge's interpretation, more a matter of "grace," than, in point of fact, they have been for many years.12 "Equity varies as the length of the Chancellor's foot" was no doubt true of the original Court of Chancery established by Edward I. In those early days of the Court of Chancery the Lord Chancellor was always an Ecclesiastic, and did, in all probability, think he was to decide the questions submitted to him according to the law of nature. But, confused and equivocal as this law has always been—varying far more than the length of the Chancellor's foot—it could not effectively have been the determinant of the Lord Chancellor's mind. There must have been some other frame of reference shaping his decisions, very much the same frame of reference which had shaped the legal principles, enactments, and maxims of the common law as they developed. Oliver Wendell Holmes, in his dissenting opinion in Vegelahn vs. Guntner, thus designates what to his way of thinking the frame of reference is: "The very considerations which judges most rarely mention, and always with an apology, are

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the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned." 13 T h i s is a clear and simple, though by no means uniform and precise, frame of reference. If this meaning be taken for the concept law-of-nature as higher law—"considerations of what is expedient for the community concerned"—then we have as "higher law," or more general determinant for legislative processes, a touchstone which is sufficiently high and awful to provide solemnity, I should say, without being so atmospheric as to dissipate intelligibility. It is not the transcendental law of nature, deducible by reason alone from the simple fact that man is man. T h a t has been shown to be semantically inept and practically useless. T h i s is to say that it is utility, not a metaphysical principle, which is, to use Holmes' phrase, "the inarticulate major premise of legal decisions"—how inarticulate is seen from the fact that it is so seldom recognized even when stated. Henry Steele Commager, for example, in his article entitled "Constitutional History and the Higher Law," while he gives it as his belief that the grounds of legal decision lie in a higher law that is "a priori," "intuitive and transcendental," actually quotes the above from Holmes in support of his own diametrically opposed view. 14 " T h e true grounds of decisions are considerations of policy and of social advantage," Holmes says.15 Scarcely could any utterance be less intuitive and transcendental than this. T h e true ground of decisions is utility, tried and verified by pragmatic tests. Benjamin N. Cardozo, Justice of the Supreme Court of the United States, gives as follows such

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uses of discretion as come into the decision of a judge, whether in a court of law or a court of equity. "He must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs, his sense of right, and all the rest, and, adding a little here and taking out a little there, must determine, as wisely as he can, which weight shall tip the scales." 16 Here is a process which ought to be informed, wise, and humane. It does not in the least suggest anything higher, or anything more awful, than utility, or what is expedient, not for a single plaintiff or a single defendant, but for the community, however widely that term be construed. On "discretion" in the decisions of equity in English courts, what follows is authoritative. It is most important that the profession, and those who have to advise in reference to this subject, should understand the rule which is adopted in this and the other Courts, which is, that the discretion of the Court must be exercised according to fixed and settled rules; you cannot exercise a discretion by merely considering what, as between the parties, would be fair to be done; what one person may consider fair, another person may consider very unfair; you must have some settled rule and principle upon which to determine how that discretion is to be exercised.17 The same point is made rather more broadly for American courts of equity by Pomeroy in Specific Performance. The language which describes the remedy of specific performance as depending upon an exercise of discretion—even of judicial discretion—unless taken with certain limitations and interpreted in a particular manner, is misleading; it is a misconception which represents the granting of this relief as in any sense a matter of grace, or depending upon the favor of the Court. Courts of Equity do not sit, any more than Courts of Law, to

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distribute favors or acts of grace to their suitors; their judicial function consists in the protection of rights and the enforcement of duties by means of the remedies which they administer. . . . Where all the proper conditions are present, the remedial right is as perfect, certain, and absolute, as the nature of the remedy itself will permit. . . . 18 If the defences peculiar to a suit for specific performance are analysed, it will be found that they all involve the application of judicial discretion in accordance with settled principles.19 G. W . Keeton, from whom the above passages are taken states that not only the layman, but also "the foreign student of English law," erroneously inclines to take discretionary fair-dealing as the root-concept of equity. A foreign lawyer, however, might go a step farther. He is familiar with equity as something which the judge may employ to temper the rigidity of the law, whenever the strict rule of law might work a palpable injustice. This is, in fact, very like its original Greek meaning of upright conduct and fair dealing. Special provision exists for this in some codes, for example, the Austrian and German Civil Codes. The principle also exists in International Law, for Article X X X V I I I of the Statute of the Permanent Court of International Justice provides that the Court shall have power "to decide a case ex aequo et bono if the parties agree thereto." 20 T h e fact that such provisions exist in the civil codes of certain countries of Europe will explain the atempt of a European philosopher of jurisprudence, as for example del Vecchio, to relate equity in a special sense to the law of nature. When it is recalled that Grotius viewed the law of nations as having derived from the law of nature and, further, that there is no forceful enactment behind the tenets of international law, it is less surprising that loose discre-

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tionary powers appertain to international legal decisions. B u t it is safe to say, in view of the demonstrated vagueness of natural law, that it is some tacit principle other than the law of nature which is the criterion for even such discretionary powers. Again, Holmes' citation of "considerations of what is expedient for the community concerned" seems the most likely of all criteria or "secret roots" to serve this purpose. A s regards international law, Oppenheim has something to say which is relevant here. There need be no mystery about the source of obligation to obey international law. T h e same problem arises in any system of law and it can never be solved by merely juridical explanation. T h e answer must be sought outside the law, and it is for legal philosophy to provide it. . . . T h e truth is that states . . . are merely institutions, that is to say, organizations which men establish among themselves for securing certain objects, of which the most fundamental is a system of order within which the activities of their common life can be carried on. There are important differences between international law and the law under which individuals live in a state, but those differences do not lie in metaphysics.21 If the touchstones of both are the touchstones of utility, as can be very soundly maintained, then we have both for intrastate and for international legal deliberations the same criteria. These criteria are utilitarian considerations of what is expedient for the community concerned: expedient to bring out and develop those rich and varied human values latent in individual and group. Ernst Troeltsch, in an address on "Natural L a w and Humanity in W o r l d Politics,"

22

said as follows in 1922,

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after a profound analysis of the divergencies which marked the cleavage between German culture and the culture of Western Europe. In Germany we are unprepared and disinclined . . . to comprehend properly the terms "Natural Law" and "Humanity." . . . It is essential to remember, in dealing with these terms, that we . . . are face-to-face with ideas which are both of great antiquity. Their original roots . . . run down into the spiritual development of some thousands of years, though they have been made to assume very various forms in the course of their long history. These are ideas which are the basis of our European philosophy of history and ethics; ideas which have been closely connected, for thousands of years, with theology and humanism. 2 ' After giving a brief historical account of natural law not essentially very different from the account in these pages, Troeltsch continues. In spite of what has been said about its antinomies and its problems, this general body of thought remains something in the nature of a consistent whole; and if it is challenged in its fundamental principles, or has to face an opposition which menaces it politically, it can be rallied together in some sort of unity to meet the challenge. . . . We need not be astonished, therefore, to find that this system of ideas, in spite of its imperfections, and notwithstanding its divisions, was able to form a common front in the hour of need against German ideology, or that it could evoke, to meet the challenge of "German barbarism," the enthusiastic instincts of all who believed in universal ends common to all mankind—in Humanity, the cause of Natural law, and the moral rules of Nature. 24 These passages are taken from the body of Troeltsch's address in a way that elides his profound exposition of

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the true meaning, the true worth, and the shortcomings of German culture. But they do raise the questions which spring to mind at the close of this present much more modest and far less learned inquiry. Is this present inquiry baleful in its attempt to probe the value of a metaphysical natural law concept? Is it subversive in its earnestly purposed and rigorously prosecuted effort to show the concept up as ''semantically inept and practically useless"? Has it nothing to offer in place of that? Is it destructive in purpose and nihilistic in effect? Is it "nothing less than a hauling down of the flag of life in the course of man's perpetual effort to keep it flying?" No! It is notl The theory of the Rights of Man [Troeltsch says]—rights which are not the gift of the State, but the ideal postulates of the State, and indeed of Society itself in all its forms—is a theory which contains so much of the truth, satisfies so many of the requirements of a true European attitude, that we cannot afford to neglect it; on the contrary, we must incorporate it into our own ideas. . . . We must not allow that view to be petrified by tradition and custom and national self-esteem: we must not allow it to leave out of account other States and peoples and communities, or the need of an ordered system of relations with them. The wider horizon of 'the parliament of man and the federation of the world' must include all the elements of which we have spoken, as moral necessities and postulates; and while we recognize the obstacles which actually confront these postulates, we must none the less cling to them as our ideal.25 Our present inquiry is no belittling of the theory of the rights of man. Quite the contrary! Its design is to explain the rights of man in nontranscendental terms which can be understood. Here the rights of man are explained not as in-

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herent, not as self-evident, not as "postulates," but as notches on the barrel of the long gun which lovers of freedom have kept (and will keep) trained on freedom's enemies. T h e rights of man is history, not postulates. Indeed, there is a more reciprocal relation between the rights of man and the state than that which Troeltsch suggests—not every state, but that democratic state in which, to use again John Adams' phrase, "the people have, collectively or by representation, an essential share in the sovereignty." Troeltsch is correct in saying that the rights of man are not the gift of such a state. They are the foundations of the state constructed at high cost; and they are the superstructure. They are the rock on which a true state stands. They are the drills and the rivets and the hammer strokes which built the state and hold it together. They are its towers and battlements. They are the state's to guard. T h e rights of man are inalienable from man, as was said in Chapter III, because mankind, having won them, in proportion as he is vigilant for freedom's sake will never give them up. They are his answered "needs" externalized and placed within the safe keeping of the state. Postulates can become mere hypotheses. This happened to the "self-evident" truths of mathematics. It is not so farfetched as might at first appear. T h e fact that postulates are thought to be unquestionable makes them fearfully vulnerable. What cannot be questioned seems to require no defenders. Chapter I of this book was concerned to show that two types of state, which are no longer very far apart from each other—the totalitarian state and the communistic state—

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are fundamentally opposed to the state in which the people have an essential share in the sovereignty. There are two philosophies of history which are not very far apart from each other either, from one point of view. Both are fundamentally opposed to the democratic idea which sees between the rights of man and the state such a reciprocal relation as I have just described. I refer to the Spenglerian cyclical theory of history and the Marxist theory of dialectical materialism. Both theories would minimize the part the common man plays in working out his destiny as, alike, builder and beneficiary of the state. About the Marxist theory, I will again speak here. It is spoken about again because in general outline it is the Russian theory, which is very much in our minds at this time. T h e Russian theory is something more than theory: it is a fact, implemented, determined to expand, and determined to crush the democratic idea as defined in this book. It is the overt foe of any theory of natural law, however empirical, however expressed, and any theory of the rights of man. That it is their foe can be demonstrated in any one of many ways. It can be briefly indicated very directly and very simply. Here is a press release on the proceedings of the Human Rights Commission of the United Nations, meeting at Geneva on December 12, 1947, to consider a report of the Convention on Human Rights. The Commission, under the chairmanship of Mrs. Franklin Delano Roosevelt, adopted the following text for Article I of the proposed declaration of rights: "All men are born free and equal in dignity and rights and shall regard each other as

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brothers." The USSR Representative criticized the adoption of this formula, saying it was too abstract and philosophical and that it contained a contradiction in that it coupled the concept of fraternity with the idea of man's natural rights of the Eighteenth Century materialistic philosophers.28 T h i s incident has been substantially re-enacted many times in recent years, in many contexts, with many shades of meaning. T h e objection, appearing to crop up in easy spontaneity, is actually the informed expression of Russia's deep-seated and sly opposition to the root concepts of our democracy. T h e basic concepts of natural law, however derived, and the basic concepts of the rights of man, however explained, this Russian theory opposes. T h e USSR sees mankind, or men, if you like, in a very different light from that which is thrown out by either of these ideas. For Marx and for Marxist Russia man's worth is computable in units of labor performed, and in no other way. For Marx, the person is a physiological being using his body in material or mental labor to wrest sustenance from material nature, without which life, liberty, and the pursuit of happiness are "an idle dream." The difference from the conception of individual rights of the American Declaration of Independence is marked.27 T h e Soviet Bill of Rights, included in the Russian Constitution of 1936, as F. S. C. Northrop points out in The Meeting of East and West, is commendable as written. Its most important guarantees, however, are nullified in the text of the constitution itself. T h e r e are some to whom the rights of man are blatantly not self-evident.

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T h e Russian view, diametrically different from ours, is a part, and an urgent part, of the reason for getting all there is of our democratic American system and of our American rights out into the open, where they can be examined by all, understood by all, and evaluated by all. These are "parlous" times, indeed! These are times when it would be more than risky to let anyone think we are basing our American rights and our constitutional democracy on vague, ineffable principles. The Russians are highly vocal. Here in the United States, in Britain, and in the freedom-loving countries of Europe infiltrated or indigenous enemies of democracy are vocal, too. They speak sotto voce, but they speak. There is intentional poison in such a slur as the USSR's imputation that our belief in rights is drawn from "abstract and philosophical" ideas of the "Eighteenth Century materialistic philosophers." If it is, then it is thrice removed from practical verifiability: once by abstraction, once more by subjectivity, and again by distance of time, place, and culture. This slurring implication that our rights are taken from foreign and materialistic ideologies ought to make us realize, if nothing else ever has, the kind of enemy we must be vigilant against or fight. After England's long Civil War and after the American colonists' long struggle to separate themselves from decisions of a remote British Parliament in which they had no representation, the right to overthrow a tyrannous government by revolution was affirmed in our Declaration of Independence. But it can hardly be too often or too clearly pointed out that this right was intramurally absorbed and annulled in our Constitution, which provides the people of

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the United States with power to amend and alter their government by popular, constitutional means. T h e right of revolution in these United States is no more. T h e rights of man as a metaphysical concept is meaningless. T h e rights of man as won in the interest of human happiness and well-being is a clearer call and a more magnetic rallying cry, Americans well may hold, than the rights of man deduced by reason alone. What men have won, men can hold. What men can hold, they can stand on to see further, and, so standing, can fight to defend their hard won rights and to expand them as needs are agreed upon. T h e rights of man—these are a pattern, high and awful indeed: the Pattern in Heaven, no less high and no less aweinspiring because, though it is in Heaven, men, standing on tiptoe, have put it there. It is not necessary to list these rights here. T h e pattern of human rights is an expanding vision. So, also, is the pattern of human duties. Many human aims have won through to the status of rights which at the time of specific bills of rights were not even contemplated. T h e roster of human rights is an expanding vision of those minimal rights which government may be asked to guarantee or to provide. Aristotle early pointed out such a pattern, noticed by him as he analyzed many constitutions and observed many governments at work. He would be astonished, indeed, I do not doubt, were he to read the Human Rights Bill finally put forward by the Social Committee of the United Nations and adopted by the General Assembly. Yet, there is continuity, there is a march, connecting that minimal pattern he observed and the minimal roster now acceptable. It is less surprising than

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might at first appear that twenty-nine nations could agree on such a bill of human rights, with the Soviet bloc abstaining from the vote, but at least not voting to oppose. Richard McKeon points out in the article quoted on page sixty-three of this book that "the declarations of human rights are surprisingly similar." Essence, or no essence, human beings do require pretty much the same arrangements to keep them happy—or at least contented. So this Human Rights Bill does not astonish us; but inspire us, it must. There is no doubt that mankind, in complacency or in presumption or in audacity, think of themselves in a political sense as creatures to whom certain advantages are owed, as creatures who expect something quite special of themselves and for themselves. But, when they think of themselves thus, history is on their side, and they know it. When rights are lost, as in totalitarian countries, it is history more than rationalizing which pricks men on to win them back. Persons who are members of what might be called transmundane religious groups, both Roman Catholic and Protestant, may be taught (but they need not be taught) to relate this sense of man's worth to the doctrines of the church. Jacques Maritain's book is a fair example of this. But however we may regard the doctrines of the church, our political sense of expectation and deserving derives from something very practical, since it is written into the record of humanity which we call "history." It is written there in a less complete, but more verifiable and more applicable, form than the metaphysical law of nature, not only as declarations and bills of rights but also in the record of the winning of these rights. These say more about the nature of man, and they

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say it more intelligibly, than any statement of a metaphysical law of nature has ever done. The story of mankind's felt needs, the political goals men have marked out for themselves, the record of attainment, and the record of human consecration to the cause of freedom are engraved on clear-cut tablets of stone, not on amorphous tablets of the mind. For that very reason an empirical, demonstrable, and verifiable pattern is in this small volume elevated above the more metaphysical, more pretentious, and less intelligible expression. Certainly, this direct treatment would seem more in keeping with the requirements of political philosophy and of philosophy of jurisprudence in this scientific age. It is here offered especially to Americans. Whatever Americans may say or may have said about the law of nature, about a "higher law," they appear to mean or to have meant, not a transcendental essence, but a practical plan. This is the plan to make possible individual, free, righteous development within a happy and prosperous commonwealth. Indeed, on such a practical plan, or "true bottom," as Jefferson called it, must rest the great cause of individual freedom, not only in America, but everywhere else. On this "true bottom" also must rest our clearest hope for the dignity of man, for the brotherhood of man, and for the federation of the world.

Notes I.

CITIZEN

AND

STATE

1. Plato Symposium, § a n . 2. Kant, Metaphysic of Morals, p. 53. 3. Aristotle Posterior Analytics i. 2. 34. 4. Metaphysic of Morals, p. 53. 5. Aristotle Nicomachean Ethics x. 1179b. 19. 6. Spinoza, Ethics, Fourth Part, Sch. I to Prop. X X X V I I , and Prop. X L . 7. Ibid., Prop. X X . 8. Mill, Utilitarianism, pp. 51 ff. 9. Ibid., p. 24. 10. James, Pragmatism, esp. pp. 286 ff. 11. Hegel Selections, p. 369. 12. Ibid., pp. 387-89. 13. Ibid., p. 462. 14. Republic*. 591. 15. Aristotle Politics ii. 1261a. 15. 16. Marx, Critique of the Gotha Programme, p. 10. 17. Ibid., p. 18. 18. Laws i. 645. 19. Marx, Critique, p. 8. 20. Republic viii. 565. 21. Hobbes, Leviathan, p. 64. 22. Ibid., p. 89. 23. Andrews, "How United States Communists Look at Current Issues," New York Herald-Tribune, January 11, 1948. 24. Mill, Utilitarianism, p. 29. 25. Leviathan, p. 110.

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Notes to Pages 4 4 - 7 0

26. Aristotle Politics i. 1253a. 19. 27. Quoted by Sabine in A History of Political Theory, p. 582. 28. Laws 874c; Politics i. 1253a. 32. 29. Locke, Two Treatises of Government, p. 127. 30. Lippmann, The Good Society, p. 35. 31. Letter to Samuel Adams, Oct. 18, 1790, in John Adams, Works, VI, 415. 32. Bridgman, The Logic of Modern Physics, p. 5. II.

NATURAL

LAW

1. Grotius, De jure belli ac pads, Book I, ch. i, sec. X , 1. 1. 2. Ibid., Prolegomena, sec. 16. 3. Republic iii. 22. 4. Laws i. 10, 28-29. 5. Nicomachean Ethics v. 1134b. 24. 6. Rhetoric i. 1375a. 25 ff. 7. Ibid., 1378a. 8. 8. Chroust, "The Nature of Natural Law," p. 70. 9. Ibid., p. 82. 10. Richard McKeon, "The Rights of Man," Ethics, LVIII, 181. 1 1 . Wright, "American Interpretation of Natural Law," American Political Science Review, X X , 524-47. 12. Becker, The Declaration of Independence, pp. 242, 246-47. 13. Hume, The Treatise of Human Nature, p. 543. 14. Summa theologica, "Treatise on Law," Question 90, Fourth Article, "Whether promulgation is essential to a law." Reply obj. 1. 15. Grotius, De jure belli ac pads, Book I, ch. i, sec. X , 1. 5. 16. Ibid., Prolegomena, sec. 1 1 . 17. Ibid., sees. 8, 12. 18. See Schneider, "Philosophical Differences between the

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Constitution and the Bill of Rights," for an exposition of the play of inconsistencies in Grotius. 19. John Locke, Two Treatises of Government, p. 128. so. Hobbes, Leviathan, p. 4g. 8i. Becker, The Declaration of Independence, p. 26. 22. Thomas Hobbes, The Elements of Law, p. 58. 23. Ibid., p. 71. 24. See Sabine, A History of Political Theory, p. 601. 25. Bentham, A Fragment on Government, p. 213. 26. See page 62 of this book for definition. 27. Haines, The Revival of Natural Law Concepts, p. 6. 28. Lord Wright, "Natural Law and International Law," p. 802. 29. Sabine, A History of Political Theory, p. 614. 30. Burke, Reflections on the Revolution in France, in Works, II, 359. 31. Rhetoric i. 1375b. 1. 32. Del Vecchio, The Formal Bases of Law, p. 332. 33. Ibid., pp. 300-302. 34. Ibid., p. 335. 35. "The Revival of Natural Law Concepts," op. cit., p. 285. 36. Del Vecchio, The Formal Bases of Law, p. 18. 37. J. Segond, commenting on del Vecchio, in Del Vecchio, The Formal Bases of Law, Appendix I. 38. Chroust, "Nature of Natural Law," p. 84, note 23. 39. Laurence Stapleton, Justice and World Society, p. 5. 40. Del Vecchio, The Formal Bases of Law, p. 15. 41. Ibid., ch. viii, passim. 42. Haines, The Revival of Natural Law Concepts, p. 285. 43. Stammler, The Theory of Justice, § 3, passim. 44. Theory of Justice, § 5. 45. Ibid., § 1. 46. For Stammler's discussion of this see his Wirtschaft und Recht, Section 33. 47. Haines, The Revival of Natural Law Concepts, p. 249.

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48. Geny, Appendix I to Stammler, The Theory of Justice, P- 51549. Ibid. 50. Hocking, Present Status of the Philosophy of Law and of Rights, p. 44. 51. Ibid. 52. Dewey, in My Philosophy of Law. 53. Stammler, The Theory of Justice, p. 88. 54. Chroust, " T h e Nature of Natural Law," p. 73. Stammler himself would deny this. See Hocking, The Present Status of the Philosophy of Law and of Rights, p. an. 55. Maritain, Existence and the Existent, p. 1. 56. Maritain, The Rights of Man and Natural Law, p. 20. 57. Ibid., p. 44. 58. Ibid. 59. Ibid., p. 47. 60. Ibid., p. 61. 61. Ibid. 62. Ibid., p. 63. 63. Ibid., p. 61. 64. Ibid., p. 65. 65. Ibid., pp. 70, 71. 66. James, Pragmatism, p. 58. 67. Ibid. 68. Ibid., p. 64. 69. Utilitarianism, p. 55. 70. Ibid., p. 38. 71. Maritain, Existence and the Existent, p. 37. 72. A Pluralistic Universe, p. 49. 73. Aeschylus, "Prometheus Bound," in The Complete Greek Drama. III.

NATURAL

LAW

IN

AMERICA

1. See p. 86 of this book. 2. In Number L X X X I V o£ The Federalist Hamilton calls

Notes to Pages 1 1 1 - 2 2

189

the Constitution itself "in every rational sense, and to every useful purpose, a bill of rights." 3. Jefferson, The Commonplace Book, p. 53. 4. Ibid., #694. 5. Ibid. 6. Number X L I I I of The Federalist. 7. See "The Farmer Refuted" (1775), in his Works, I, 59. 8. Number LI of The Federalist. 9. Ibid., Number LXII. The fact that there is uncertainty, in the minds of scholars as to whether Hamilton or Madison wrote these papers indicates clearly enough that the views expressed in them were held by both. James Truslow Adams, however, in Jeffersonian Principles and Hamiltonian Principles (Little Brown & Company, 1932), pp. 4 and 6, ascribes them to Hamilton. 10. Wilson, "Considerations on the Nature and Extent of the Legislative Authority of the British Parliament." 1 1 . Bryce, Studies in History and Jurisprudence, p. 556, and footnote citing Epicurus (Diogenes Laertes, X, 150) as describing "natural justice" as an "agreement made for the sake of common advantage." 12. The Encyclopedia Britannica, 14th ed., VIII, 772c and 773a, under "Modern Ethics." 13. The Life and Selected Writings of Thomas Jefferson, ed. Koch and Peden, p. 550. 14. "On the Question Whether the United States Have a Right to Renounce Their Treaties with France," in Basic Writings of Thomas Jefferson, p. 316. 15. "Of the Law of Nature," in Lectures on Law, Chapter III. 16. See Mullett, Fundamental Law and the American Revolution, p. 79 and passim. 17. Quoted by George H. Sabine, in A History of Political Theory, p. 483, from the Clarke Papers, I, 301. 18. Mullett, Fundamental Law, pp. 169-70.

igo

Notes to Pages

123-34

19. Mullett, Fundamental Law, p. 67. 20. Ibid., p. 81. 21. Wright, American Interpretations of Natural Law, p. 67. 22. American Interpretations, p. 67«. 23. Ibid., pp. 102-3. 24. John Adams, Works, VI, 417. 25. Von Abele, " T h e World of John Adams," American Mercury, L X V I I (July, 1948), 66-73. 26. Samuel Adams, Writings, IV, 344; also John Adams, Works, VI, 421. 27. Haines, Revival of Natural Law Concepts, p. 54. 28. Schuyler, The Constitution, p. 91. On page 91 Schuyler states that in these words Dickinson expressed the prevailing point of view. 29. Dickinson, Letters from a Farmer in Pennsylvania, p. 93. 30. Ibid., p. 92. 3 1 . Quoted by Harry Hayden Clark in Thomas Paine, Introduction, xliii. 32. Writings, Conway ed., II, 306. 33. Ibid., 303, 304. 34. Ibid., I, 69. 35. Ibid., II, 432. 36. Ibid., 386. 37. Ibid., 399. 38. Ibid., III, 61. 39. Ibid., II, 399. 40. See p. 1 1 0 of this book; also, note 2, above. 41. Thomas Cooper, Lectures on the Elements of Political Economy, 2d ed., p. 31. 42. Ibid., p. 22. 43. Ibid., p. 63. 44. Hobbes, A Dialogue of the Common Laxvs, VI, 5. 45. Cooper, Lectures, p. 63. 46. Holmes, "Natural Law," in Collected Legal Papers, p. 310.

N o t e s to P a g e s 1 3 6 - 5 7 47. Maclver, The Web of Government, 48. Reflections

191

pp. 6, 7.

upon the Great Revolution,

State Tracts, I,

»5349. Mcllwain, " T h e Fundamental Law," in The High Court of Parliament, ch. ii. 50. Ibid., p. 98. 51. "England's Lamentable Slaverie," in Tracts on Liberty in the Puritan Revolution, III, 313. 5s. " A Remonstrance," ibid., I, 354. 53. Henry Sidgwick and Abraham Wolf, "Ethics, History of," in Encyclopaedia Britannica, 14th ed., VIII, 772a. 54. Kelsen, " T h e Metamorphoses of the Idea of Justice." 55. Nichomachean Ethics v. 1129b. 17. 56. Lochner vs. New York (1904), United States Reports, 198 U.S. 45. Adair vs. United States (1907), United States Reports, 208 U.S. 161. Coppage vs. Kansas (1914), United States Reports, 236 U.S. 1. 57. Pollock, Essays in the Law. 58. Ibid., p. 64. 59. Ibid., p. 57. 60. Ibid., p. 69. 61. Stapleton, Justice and World Society, p. 20. 62. Jouffroy, Cours de droit naturel, Vol. I, Lec. xii. 63. Pollock, Essays in the Law, p. 73. 64. Keeton, An Introduction to Equity, p. 1. 65. Ibid., p. 2. 66. Perry, Puritanism and Democracy, p. 129. 67. Holmes, The Common Law, p. 35. IV.

THE

PATTERN

1. Carl Becker, "Drafting the Declaration," in The Declaration of Independence, ch. iv. 2. See pp. 138 ff.

192

Notes to Pages

159-76

3. Formal Bases of Law, ch. x, Pt. 1, § 77. 4. Rhetoric i, 13680.8. 5. Quoted by Haines, Revival of Natural Law Concepts, p. 282, from del Vecchio, Sui principi generali del diritto, pp. 23-25. 6. Locke, Essay on the Human Understanding, Book II, ch. 29, § 12. 7. Ibid., Book II, ch. 4, § 6. 8. Ibid., Book III, ch. 2, § 8. 9. Nicomachean Ethics i, 1097a. 9. 10. The Rights of Man and Natural Law, p. 19. 11. Nicomachean Ethics v. 1137b. 19. 12. See Keeton, " W h a t Is Equity?" and " T h e Maxims of Equity," in An Introduction to Equity, chs. i and ii passim. 13. 167 Mass. 92; given also in Holmes, The Common Law, P- 3514. Commager, "Constitutional History and the Higher L a w , " The Constitution Reconsidered, pp. 226, 232, 237. 15. Holmes, Vegelahn vs. Guntner, Massachusetts Reports 167, 106. 16. Cardozo, The Nature of the Judicial Process, p. 162. 17. Quoted by Keeton, An Introduction to Equity, p. 117, from M. R. Romilly in Hayward vs. Cope (1858), 25 Beav. 140, 141. 18. Quoted in ibid., p. 118, from Pomeroy, Specific Performance (3d ed., 1926), para. 46. 19. Ibid., p. 118. 20. Ibid., p. 1. 21. "J. L. Brierly on the Basis of Obligation in International L a w , " quoted in The Law of Nations, ed. by Briggs, p. 21. 22. Delivered on the second anniversary of the German Hochschule für Politik, Printed as Appendix I to Gierke, Natural Law and the Theory of Society, Vol. I. 23. Ernst Troeltsch, "Natural Law and Humanity in W o r l d

Notes to Pages 176-80

193

Politics," in Gierke, Natural Law and the Theory of Society, pp. 202-3. «4. Ibid., p. 209. 25. Ibid., p. 220. 26. Press Release SOC/303, 12 December 1947, received at UN Headquarters at Lake Success, New York, from the UN Information Center at Geneva. 27. Northrop, The Meeting of East and West, p. 240.

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Massachusetts Reports; 167, 92. Mill, John Stuart. Utilitarianism. New York, Dutton, 1944. Everyman Edition. Mullett, Charles F. Fundamental Law and the American Revolution. New York, Columbia University Press, 1933. Northrop, F. S. C. T h e Meeting of East and West. New York, Macmillan, 1946. Otis, James. T h e Rights of the British Colonies Asserted and Proved. Boston, printed 1765. Paine, Thomas. Thomas Paine, edited by Harry C. Clark. New York, American Book Co., 1944. T h e Writings of Thomas Paine, edited by Moncure D. Conway. New York, Putnam, 1894-96. Perry, Ralph Barton. Puritanism and Democracy. New York, Vanguard, 1944. Plato. Laws; Protagoras; Republic; Symposium; in T h e Dialogues of Plato, Jowett translation, edited by Raphael Demos. New York, Random House, 1937. Pollock, Sir Frederick, Bart. Essays in the Law. London, Macmillan, 1922. "Reflections upon the Great Revolution," in State Tracts, Vol. I. Sabine, George H. A History of Political Theory. New York, Holt, 1937. St. German, Christopher. T h e Doctor and Student. Cincinnati, Clarke, 1874. Schneider, Herbert W. "Philosophical Differences between the Constitution and the Bill of Rights," in T h e Constitution Reconsidered, edited by Conyers Read. New York, Columbia University Press, 1938, p. 143. Schuyler, Robert L. T h e Constitution. New York, Macmillan, 1923Spinoza, Benedictus de. Ethics, edited by John Wild. New York, Scribner, 1930. Stammler, Rudolph. T h e Theory of Justice, translated by Isaac Husik. New York, Macmillan, 1925.

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Stammler, Rudolph, Wirtschaft und Recht. Berlin, De Gruyter, 1924. Stapleton, Laurence. Justice and World Society. University of North Carolina Press, 1944. Thomas Aquinas. Summa theologica, translated by the Fathers of the English Dominican Province, New York, Benziger, 1947. Tracts on Liberty in the Puritan Revolution, 1638-1647, edited by William Haller. New York, Columbia University Press, »934United States Reports. 198, 45; 208, 161; 236, 1. Vecchio, Giorgio del. The Formal Bases of Law. New York, Macmillan, 1921. Wilson, James. Lectures on Law, in his Works. Philadelphia, Lorenzo Press, 1804. "Considerations on the Nature and Extent of the Legislative Authority of the British Parliament," 1774. Wright, Lord Wright, P.C., F.B.A., LL.D. "Natural Law and International Law," in Interpretations of Modern Legal Philosophies, edited by Paul Sayre. New York, Oxford University Press, 1947, p. 794.

Index Absolute ethics, 4, 12, 14 ff., 18, 53 Absolute Justice, 104 Absolutism, 104 Achaean League, 11a Adair vs. The United States, 145 £. Adams, John, 51, 124, 157, 178 Adams, Samuel, 121, 124, 125 Aeschylus, 106 American colonists, 151 American pamphleteers, see Pamphleteers, American Amphictyonic Council, 112 Anarchy, 48 Antifederalists, 63, 64 Antigone, 79, 80, 97, 106 A priori, 62, 71, 81 f., 86, 87, 88, 89, 10 9». 93. 98> 5> ! " » n 3> i«7> 129. 133. 134. 139. »43. >54. '55. 172 Aquinas, Saint Thomas, 63, 68, 104 Aristotle, 3, 6, 8, 14, 23, 42, 44, 45, 58, 61, 65, 79, 82, 92, 101, 116, 149, 150, 163, 170, 182 Augustine, Saint, 68 Barbeyrac, 132 Bennett, Charles A., 169 Bentham, Jeremy, 10, 13, 96 Bill of Rights, see United States, Bill of Rights Bill of Rights (Virginia), 130 Bridgman, P. W., 54 Bryce, James, 116 Burke, Edmund, 78 Burlamaqui, Jean Jacques, 113, 119, 132

Cardozo, Benjamin N., 172 f. Categorical imperative, 7 Cathrein, 93 Charlemagne, 112 Charters, Colonial, 120 Chief Good, see Good, The Chinard, Gilbert, 1 1 1 , 115 Chroust, Anton-Hermann, 62, 63, 83 Cicero, 59, 65, 92, 97, 151 Civil rights, 126 Coke, Sir Edward, 120 Colonial charters, see Charters, Colonial Colonial rights, 126 Commager, Henry Steele, 172 Common law, 138 ff., 151 Communism, 26 ff., 41, 47, 48, 51 f.; modern communism defined, 32 Communist party in the United States, 36 Conatus, 10 Constitution, see English constitution; Union of Soviet Socialist Republics, Constitution; United States, Constitution Contract theory of the state, 71 Convention on Human Rights, 179 Cooper, Thomas, 130 ff., 158 Coppage vs. Kansas, 146 Cumberland, Richard, 116 De Maistre, Joseph, see Maistre, Joseph de Democracy, 16, 19 ff., 47 f., 128, 180 Dewey, John, 91, 100 Dickinson, John, 126 Diderot, Denis, 74

202

Index

Discretion, Legal, in equity, 170, 173 Duties of man, 38, 86, 182 Empirical ethics, 4, 8, 14, 19, 53 English common law, see C o m m o n law English constitution, 120 Entelechy, 10 Equity, 150, 151, 171 f., 173 Ethical idealism, 4 Ethics, 3 Ethics, Absolute, see Absolute ethics Ethics, Empirical, see Empirical ethics Federalists, 63 Federalist, The, n o , i i 2 f f . Foster, W i l l i a m Z., 41 F o u n d i n g Fathers, 70, 110, 157 Franklin, Benjamin, 121 Freedom, »5, 35, 184 Geny, Francois, 89, 93 Good, T h e , 3, 5 ff., 15, 117 Government, 3, 111, 114, 117, 127. 128 Great State, 16, 32, 40, 43 f., 46 f.; see also Totalitarianism Grotius, H u g o , 57, 69, 92, 98, 123, 132, 140 f., 174 Haines, Charles Grove, 78, 86, 93, >9 Hamilton, Alexander, 45, no, 112 f., 157 Happiness, 8 Happiness of society, 113, 125, 142 Harlan, John M., 145 Hegel, G e o r g W i l h e l m Friedrich, 15 fr., 46 t., 87, 89 Heineccius, Johann Gottlieb, 132 Higher law, 57, 148 f., 152, 159 f. Historicism, 83 ff. Hitler, A d o l f , 41, 46 Hobbes, T h o m a s , 38, 40, 43 f., 63, 71, 73, 81, 82, 101

Hocking, W i l l i a m Emest, 90 Holmes, Oliver Wendell, Jr.,

130,

'33. '/>. ' 7 5 Hooker, Richard, 70 H u m a n Rights Bill, see United Nations, Social Committee, H u m a n Rights Bill H u m a n Rights Commission, see United Nations, Human Rights Commission H u m e , David, 67, 74, 101 Idea, 22 f. Idealism, Ethical, iee Ethical idealism Ihring, von, 89 Inalienable rights, 109, 110, 130, 157 Inge, William R a l p h , 169 International law, 175 Intuitionism, 12 f., 15 Ireton, Henry, 140 I us gentium, 59 Jay, John, 113 Jefferson, Thomas, 45, 110, 115, 117 f., 139, 145, 157 Johnson, Samuel. 165 Justice, 56 f., 103 ff., j 14 ff., 151; definition of, 142 ff. Kant, Immanuel, 7, 87, 89 Keeton, G . W., 174 Kelsen, Hans, 142 Labor, 33, 37 Labor-management relations, 38 L a w , 35; used ambiguously, 158; see also C o m m o n law; Higher iaw; International law; Law of God; Natural law Law of God, 120. 124 Law of nature, see Natural law Legal discretion, see Discretion. Legal L i p p m a n n , Walter, 44, 50

Index Lockner vs. New York, 145 Locke, John, 45, 63, 70, 72, 163, 165 Machiavelli, Niccolò di Bernardo, 16 Meli wain, Charles Howard, 137 f., »57 Mac Iver, Robert, 135 McKeon, Richard, 63, 183 Madison, James, 112 f., 157 Magna Charta, 120, 124, 137 ff., 139 f. Maistre, Joseph de, 160 Man, duties of, see Duties of man Man, rights of, see Rights of man Management, 37 Maritain, Jacques, 67, 79, 80, 94 ff„ 104, 156, 183 Marx, Karl, 26 ff., 45 f., 48, 52 f., 17g, 180 Messianic class, 45 Middle class, 45 Mill, John Stuart, 11, 14, 42 s., 103 Milton, John, 45 Montague, William Pepperell, 169 Mussolini, Benito, 41, 46 Natural law, 56 ff., 176; definition, 62; ambiguity, 76 f., 119 f., 148, 155 f., 160, 164 ff.; definition in empirical terms, 184 Natural rights, 110 Neo-Kanrians, 80, 85, 87, 99, 156 Northrop, F. S. C., 180 Operational correspondence, 53 f. Oppenheim, Lassa Francis Lawrence, 175 Otis, James, 123 Paine, Thomas, 70, 127 ff. Pamphleteers, American, 120 Pattern in Heaven, 22 f., 104, 182 Peckham, Rufus W., 145 Pelloutier, Fernand-Léonce-Emile, 111 Perry, Ralph Barton, 151

S03

Pitney, Mahlon, 146 Plato, 3, 5, 21 ff., 27, 33, 45, 56, 71, 78, 104, 105 Poland, 112 "Police power of the state," 144; ambiguity of, 147 Politics, 3 Pollock, Sir Frederick, 147 f. Pomeroy, John Norton, 173 Pragmatism, 4, 11 ff., 16, 54 f. Prometheus, 106 Pufendorf, Samuel von, 123, 124, 132 Puritan Rebellion, 121 Randolph, Edmund, Jefferson's letter to, 117 "Reasonable," ambiguity of, 147 Rights, see Bill of Rights (Virginia); Civil rights; Colonial rights; Human rights; Inalienable rights; Rights of man; United States, Bill of Rights Rights of man, 63, 86, 103, 127 ff., 177; definition in empirical terms, 182 Rousseau, Jean Jacques, 44, 74, 157 Russia, see Union of Soviet Socialist Republics St. German, Christopher, 147 f. Self-realization, 4, 8 ff., 12 ff. Sophocles, 77, 79 Soviet Bill of Rights, 180 Spengler, Oswald, 179 Spinoza, Baruch, 9, 14 Stalin, Joseph, 46, 52 Stammler, Rudolph, 80, 86, 92, 93, 124, 127, 170 Stapleton, Laurence, 83 State, The, 3, 15 f., 29, 31, 44 ff. State of nature, 71 Stoics, 59 Supreme Court (United States), see United States, Supreme Court Switzerland, 112

804

Index

Thomas Aquinas, Saint, see Aquinas, Saint Thomas Totalitarianism, 31, 47, 48, 5s; see also Great State Troeltsch, Ernest, 93, 175 S. Union of Soviet Socialist Republics, 36 if., 52, 179 f.; constitution, 180 United Nations, Human Rights Commission, 179 United Nations, Social Committee, Human Rights Bill, 182 f. United Netherlands, 1 1 s United States, si, 38, 51, 16s; Constitution, 35, 63, 110, 130; Declaration of Independence, 35, 157 f..

181; Bill of Rights, 130; Supreme Court, 144 f. Utilitarianism, 4, 10 ft, u o f f . Vattel, Emmerich de, 1*4, 13s Vecchio, Giorgio del, 80 f., 84, 9s, 93, 1S4, 127, 156, 159, 161, 174 Vegelahn vs. Guntner, 171 Virtue. 8 f. Von Ihring, see Ihring, von Walwyn, William, 140 Wilson, James, 115, 118, 157 Winthrop, John, iss Wright, Benjamin F., 64 Wright, Lord Wright, 79 Writs of Assistance, 1S3