The Natural Law. Heinrich A. Rommen

to the question of how law binds free agents gravitate toward one of two poles, which Rommen characterizes as lex-ratio versus lex-voluntas.²⁷ In the first part of the book he investigates the intellectual history of the question; in the second part, he investigates the philosophical issues. Here, it will suffice to give a brief summary of Rommen’s position.

      For Rommen, natural law thinking has always thrived in the lex-ratio tradition. According to this tradition, law binds by way of rational obligation. To use the older scholastic terminology, law is neither force (vis coactiva) nor mere advice (lex indicans) but is rational direction (vis directiva). The lex-ratio position contends that the intellect’s grasp of what ought to be done comes first; the force executing that judgment comes second, after the directive of reason. Interestingly, Thomas Aquinas insisted that command is principally a work of reason. He believed that without the measure of action grasped and communicated by the intellect executive force is blind and arbitrary.²⁸ For example, when we say that force must be justified by law, we recognize at least implicitly that law and force are not the same thing. So, it is one thing to say that force without law is unjustified, but it is quite another thing to suppose that law is force. Thus, for the intellectualist tradition, law and liberty are not necessarily in opposition, because they are grounded in the same source, namely the intellect’s measuring of action.²⁹ The lex-ratio tradition holds that only on the ground of the primacy of reason can we make sense of law as obligation rather than as a literal binding in the fashion of force.³⁰

      The lex-voluntas tradition, however, holds that law binds human liberty because of the superior power or will of the legal authority. That authority may have proper credentials to exert such force (the governed perhaps have willed for him to do so). Moreover, the sovereign may take care to express his commands in proper syntactical form. Nevertheless, the law remains a species of force. It may be a human artifact that proves quite useful and even necessary for social life, but it is force none the less. Thus, the lex-voluntas tradition insists that the will comes first, and reason, which guides the application of the command, comes second. On this view, law and liberty stand in opposition, for the free motion of an individual can be counteracted or redirected only by the will of another. Hence, the coercive function of law is not secondary, but primary.

      Rommen traces the idea of law as force majeur to debates in the Medieval schools—debates that initially concerned issues of theology and metaphysics rather than jurisprudence.³¹ In deference both to divine omnipotence and to supernatural charity—traditionally understood to be perfections of the volitional power—Franciscan theologians (e.g., Ockham and Scotus) depicted God’s governance principally in terms of the will. The doctrine of voluntarism holds that the will legislates and reason executes. Some scholastic theorists in this school held that by a pure posit of the will God can change the terms of justice, even to the point of abrogating the Decalogue and the natural moral law. Accordingly, reason cannot count as a reason, as it were, against a unilateral projection of will on the part of the sovereign, beginning with the divine sovereign. Rommen believes that modern secular varieties of world-view positivism are the legacy of this theological debate.

      He likewise calls attention to the philosophical doctrine of nominalism, also advanced by Franciscan theologians in the medieval schools. Nominalists held that the human intellect is capable of grasping only singulars; universals are but vocal utterances or names imposed upon an aggregate of singulars. Thus, nominalists could assign to the human intellect only the work of logically and analytically organizing names, which, at bottom, are arbitrary, possessing no extramental foundation. This philosophy could not but influence jurisprudence. Debates over what is to be deemed “good,” “bad,” “just,” and “unjust” could be resolved on nominalist premises in one of two ways: either by looking in a dictionary or by imposing a solution by dint of force. Again, for Rommen, this medieval debate provided the historical background for the disrepair of the legal profession as he knew it. Law was to be conceived as a unilateral projection of will on the part of the sovereign, and lawyers became technicians of the dicta.

      In Rommen’s view, despite claims of giving preeminence to reason in public affairs, the Enlightenment generally followed the lex-voluntas philosophy. Concerning Locke, for example, Rommen writes, “Locke substitutes for the traditional idea of the natural law as an order of human affairs, as a moral reflex of the metaphysical order of the universe revealed to human reason in the creation as God’s will, the conception of natural law as a rather nominalistic symbol for a catalog or bundle of individual rights that stem from individual self-interest.”³² Legal and distributive justice are reduced to the model of contract, in the fashion of commutative justice; the will of the contractors creates not only the determinate form of political institutions but the political common good itself. So, in answer to the question of how law binds the conscience to act in accord with the common good, Locke emphasizes the principle of consent, which itself is motivated chiefly by interest in preserving life and property. Though the Enlightenment natural law theories began (in Grotius) and ended (in Kant) with efforts to preserve the principle of lex-ratio, Rommen interprets the era as a cumulative erosion of the philosophical grounds for maintaining the authority of reason with respect to the will, the priority of the natural order of sociability and common good with respect to contracts, and generally the notion of a moral law not reducible to the lower “laws” of psychophysiological forces. Thus, for Rommen, the Enlightenment delivered into the hands of its successors a natural law tradition much weakened and ill-prepared to resist the full-fledged positivisms of the nineteenth and twentieth centuries.

      Of all the versions of law as force majeur the one that triumphed in Germany developed in the soil of nineteenth-century romanticisms and vitalisms, which viewed the state as an expression of a nonrational Volksgeist or la tradition. Rommen was convinced that the Fascist idea of the state as an organic expression of a collective racial or ethnic will was the legacy not just of Rousseau but of medieval Franciscan mysticism and supernaturalism.³³ But, however its mythology differed from the positivisms of the English-speaking world, and however its notions of collective vitalism and will differed from the individualist doctrines of appetite across the English Channel, European Fascism took the side of lex-voluntas.

      The classical definition of justice is giving to each what is his due, ius suum cuique tribuere.³⁴ Rommen points out that in commutative justice the ius is what is owed to another person; in distributive justice the ius is what the community owes to the individuals; and in legal justice the ius is what individuals owe to the polity. In any case, there can be no act of giving, and hence no command to perform the act, unless there is first a ius. Until or unless someone can rightfully claim “this is owed to me [him, or them],” there is literally no issue of justice. So, the most rudimentary form of natural law thinking arises in connection with the question of whether the ius is the mere artifice of positive law. Does this life, property, dignity, and status belong to me (him or them) exclusively by virtue of a contract or decree of the state or, for that matter, by the assertion of an individual?³⁵

      Both natural lawyers and positivists agree that some terms and relations of justice arise by the artifice of legal contracts and positive decrees. There is no natural law requiring motorists to drive on the right side of the road (legal justice), or for money lent to be repaid at a certain rate of interest (commutative justice), or for providing college education benefits to veterans (distributive justice). Undoubtedly, in each of these examples the issue of what is “mine and thine,” and of who owes what to whom, is determined by customs, contracts, or statutes. In this respect, Rommen calls attention to what every lawyer knows: namely, that much of the law consists of norms that are quite arbitrary—arbitrary, that is, not in the pejorative sense of being irrational or merely willful, but rather in the sense that the material norm is not in itself an issue of morality. “Many police ordinances (e.g., traffic regulations), which serve merely a subordinate purpose of means to an end, exhibit no materially moral content. The same is true of the technical rules governing legal procedure or the organization of law courts. These norms bear such a technical, formal, and utilitarian character that the qualifications of moral or immoral cannot be applied to them.”³⁶ Because these laws have no material moral content in themselves, they can bind conduct only because there exists a prior scheme of obligation. One might presume that the traffic ordinance is related to an antecedent