The Case Against Natural Law Reassessed

Stanford Law Review
The Case against Natural Law Reassessed

Author(s): Edgar Bodenheimer
Source: Stanford Law Review, Vol. 17, No. 1 (Nov., 1964), pp. 39-54
Published by: Stanford Law Review
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The Case Against Natural Law Reassessed
EDGAR BODENHEIMER*
In I954 Professor A. P. d'Entreves delivered a series of lectures at the

Notre Dame Law School which were later published under the title
"The Case for Natural Law Re-Examined."' In these lectures, as their
title indicates, the arguments favoring use of the natural law concept in
discussing and solving problems of legal philosophy were developed
affirmatively, though at times the author resorted to the negative method
of refuting theories opposed to his basic beliefs. The present article, again
as shown by the title, uses a different approach. The discussion will cen-
ter around some influential theories which were advanced to disprove
the validity of the natural law doctrine, and which were successful in
marshaling a great deal of support on behalf of the critics of that doctrine.
The starting points for the discussion will be supplied by the argu-
ments of the school of thought opposed to natural law. No pretense of
completeness is made in presenting and evaluating the views of anti-
natural-law thinkers. The literature on the subject is vast and widely
dispersed, and a book of several volumes would be needed to deal with
this field comprehensively. The present essay will be confined to a few
theories which seem to have carried a particularly strong weight in the
dispute.2
The subject of natural law has become quite fashionable among legal
scholars and social scientists in our day and has provoked much debate
in the legal and nonlegal literature of the Western World. This renewed
interest in the problem does not extend back much further than the days
of World War II3 Prior to that time, and especially in the early part
of the twentieth century, natural law seemed almost to have vanished
from the scene, or at least to have been consigned to the museum of his-
torical antiquities. The German jurist Karl Bergbohm, who considered
* J.U.D., University of Heidelberg, 1932; LL.B., University of Washington, 1937; Professor

of Law, University of Utah.
This paper is a revised and expanded version of a lecture delivered to law students at the
National University of Mexico on September 17, 1963. A Spanish translation will be published
in the 1965 volume of DIANOIA: ANUARIO DE FILOSOFIA.
1. d'Entrseves, The Case for Natural Law Re-Examined, 1 NATURAL L.F. 5 (1956).
2. Other arguments relevant to the dispute and omitted here are discussed in Bodenheimer,
The Natural-Law Doctrine Before the Tribunal of Science: A Reply to Hans Kelsen, 3 WESTERN
PoL. Q. 335 (1950).
3. Natural law thinking has always been propagated in the neo-Thomist literature on la
and the state. The characteristic feature of post-World War II developments has been the r
spreading of interest to non-Thomist circles.
39
40 STANFORD LAW REVIEW [Vol. I7: Page 39
it the mission of his life to eradicate the last v

ing wherever he could find them, was certai
ful, and there was considerable evidence in h
his assumption was justified. Especially in Germany, a legal scholar
suspected of sympathy with natural law simply was not considered a
respectable member of the academic community; efforts to propagate
the doctrine from the rostrums of German universities would have en-
countered a great deal of opposition and discouragement during that
period.4
What were the objections raised by Bergbohm and his followers
against the natural law doctrine?' The chief criticism was that the
theory of natural law, in its historically most influential manifestations,
rested on the presupposition of permanent, fixed, more or less universal
precepts that could claim validity for all ethical systems and legal orders.
The critics asserted that such universal precepts did not exist, that they
were a figment of pure imagination. In support of this argument they
pointed to the diversity and heterogeneity of normative regulation in
the various countries of the world. What is considered a crime in State A
is regarded as perfectly permissible in State B. What is deemed to be a
perfectly valid and enforceable contract in one country is proscribed as
contrary to public policy or bonos mores in another. A business practice
outlawed as reprehensible in some communities is accepted as unobjec-
tionable elsewhere. A form of defamation actionable in some legal
orders may be privileged in others. This was the main thrust of the
argument.
However, reliance on the empirical evidence of cultural and legal
diversity does not, per se and without further argument, destroy the
foundations of a natural law approach. The reply of the natural law
jurist in rebuttal might run as follows: Even if it must be conceded that
legal and ethical systems are diverse and inconsistent, this does not prove
that one legal or ethical system might not be superior to another and
therefore better adapted to the accomplishment of the basic objectives
of political and social organization. Natural law doctrine has never
claimed that its basic postulates are universal in the sense that they can-
not be infringed by an empirical legal order. Thus, it is entirely possible
that the legal order of State A may be in conformity with natural law,
while that of State B may be in violation of it. If this should be the case,
the argument would continue, there is every reason to believe that the
legal order of State B, because it is not sufficiently conscious of and re-
4. That a similar attitude prevailed in American law schools in the 1920's has been pointed
out by Katz, Natural Law and Human Nature, 3 U. CHI. L.S. REcoRD 1 (1954).
5. See particularly BERGBOHM, JURISPRUDENZ UND RECHTSPHILOSOPHIE 175 passim, 425 pas-
sim (1892).
November I964] NATURAL LAW 41
sponsive to certain ineradicable traits

breakdowns, and eventual disintegrat
formity with the existential needs of
The legal positivist would be incline
tioning the availability of any scientif
of one country could be adjudged t
country. He would contend that stand
ditioned and shaped by the conventio
lar culture, and that no society has th
ethical and legal system of another so
ceptions of good and bad are faulty o
voiced, the legal positivist would argue
subjective and irrational reactions of p
must be deemed devoid of objective v
Implicit in this rebuttal of the natural
there exist no needs of human beings
by all legal orders, and that human n
determinate to lend itself to more or
tural conditioning and social readjustm
Since the merits of the clashing posi
evaluate social systems depend to a co
of the doctrine of ethical relativity, it
main tenet of Bergbohm's critique of
Bergbohm propagated his views, it wa
sociologists and anthropologists that
values that were recognized everywhe
Since the beginning of the twentieth
have been made in sociology and cultu
of the new findings the doctrine of e
much of its force. We know today th
the moral and legal systems of all peo
the most primitive stage of their evolu
that indiscriminate killing of member
everywhere, that some of the grosses
duct, such as rape, assault, and robber
certain elementary requirements of go
men are always enjoined upon the mem
property in some articles of person
clothing, is almost universally recogn
6. For citations of literature and a brief account

HEIMER, JURISPRUDENCE: THE PHILOSOPHY AND
H. L. A. HART, THE CONCEPT OF LAW 189-95 (1961
higher forms of development, the number of common

indispensable to an adequate ordering of human af
crease! Thus, in civilized societies it is considered esse
functioning of the judicial process that people should
in the absence of evidence supporting the indictment
adduced should not be known to the judge to be perju
that lawsuits should not be decided on the basis of br
judge.8
If universal ethical patterns exist, even though they may be confined
to a few broad and fundamental principles, and if these patterns have
given rise to congruent forms of legal regulation, it is unlikely that this
phenomenon is the result of fortuitous circumstances. There is a high
degree of probability, bordering on certainty, that these cultural uni-
formities have their roots in what may be called "the common nature of
man." We find today, it is true, scattered hints in existentialist litera-
ture that there is no such thing as a common nature of man, and that we
can properly speak only of the nature or character of a particular in-
dividual.9 This view cannot be accepted. The sciences of psychology and
psychiatry would be impossible if men did not have general reactions to
the facts and experiences of life and to the behavior of their fellowmen.
Psychoanalysis, for example, has taught us that certain forms of child-
hood experiences produce typical results which often can be avoided by
proper parental attitudes and practices, and that there are manifestations
of neurotic or psychotic behavior which stem from factors more ob-
jective in character than the highly individualized character traits of a
particular person. In other words, similar causes frequently produce
similar psychological reactions or disturbances, and this must necessarily
be due to certain uniformities of human nature. In fact, men would not
be able to deal and communicate with one another intelligently and suc-
cessfully if every individual were completely different from every other.
There are, fortunately, many individual differences among men, but
men also have in common with others certain aspects of both their
physis and their psyche.10
7. This dynamic element in natural law probably accounts for the following statement by
Aristotle, which has puzzled many interpreters: "[I]n our world, although there is such a thing
as Natural Justice, all rules of justice are variable. . . . [I]t is easy to see which rules of justice,
though not absolute, are natural, and which are not natural but legal and conventional, both sorts
alike being variable." ARISTOTLE, THE NICOMACHEAN ETHICS 295-96 (Rackham ed. 1947).
8. There are countries in which judicial corruption is widespread, but the fact that instances
of corruption are concealed from the sight of the public shows that prevailing public opinion
regards such practices as perversions of the judicial function.
9. See, e.g., SARTRE, EXISTENTIALISM 27 (1947).
10. See VERDROSS, ABENDLAENDISCHE RECHTSPHILOSOPHIE 244-51, 268 (2d ed. 1963). On
Verdross's philosophy of law see Kunz, La Filosof'a del Derecho de Alfred Verdross, 1962 DIANOIA:
ANUARIO DE FILOSOFIA 209.
This conclusion does not, however, se

discussion is addressed. If we can assum
nature, upon which individual differe
this common nature is responsible for s
ties in the legal systems of the world, this
in the argument, support and justify th
The law is much more concerned wit
"ought" than with the realm of the on
mative prescriptions laid down by th
effective unless they are securely an
reality, which constitute limitations on
of lawgivers. But this does not mean th
not exist on a large scale between that
be. Are we in danger of closing avenu
reach firm conclusions regarding the f
human nature, and if we declare these t
to experimentation with the human
the fact that up to this day we have obs
in the legal systems of the world offer
these common norms ought to be recogn
as eternal limitations on efforts at hum
strumentality of positive law?
At first sight, this argument against t
quite persuasive. For example, many
have asserted that there is a strong and
tism and self-assertiveness in human
Spencer, on the other hand, believed tha
of evolution toward higher and more r
would shed much of their present selfi
and cooperative side of their nature." T
fense against the charge that his advoca
laissez faire could easily produce anarch
cial life. Many social scientists today
that mankind was bound by inevitable m
to travel toward a stage of social inte
terests. But this does not dispose of the
deliberate attempt should be made, th
other means, to strengthen the social
some theory of natural law would disco
1 1. 1 SPENCER, PRINCIPLES OF ETHics 204-05, 2

(1891).
operative attitudes in human beings, it might expos

of standing in the way of human progress.
The rejoinder to this objection must be that non
theories that have played a major part in the histo
has placed roadblocks of this character in the path o
Although all of these theories have recognized som
on the powers of human legislators stemming from
man nature, not one of them has declared that effor
cooperative and social-minded were contrary to the natural law and
therefore bound to end in failure. On the contrary, a large majority of
natural law philosophers have proceeded from the assumption of a so-
cial instinct in man which the institution of law is designed to comple-
ment and reinforce. Even Thomas Hobbes, who accentuated the selfish,
uncooperative, and aggressive impulses of men more strongly than any
other natural law philosopher, recommended a corrective to this de-
fective condition of human nature through instituting strong govern-
ments capable of enforcing the observance of the golden rule and the
maintenance of mutual respect for private rights, particularly contract
and property rights.12 In other words, it was the function of Hobbes's
Leviathan to educate human beings, who in the state of nature would
act like rapacious wolves toward each other, to conduct themselves as
decent citizens and permit their fellowmen to live peaceful and undis-
turbed lives.
What the natural law doctrine has always asserted is that the de-
structive instincts of men must be kept under control, and that curbs on
violence and indiscriminate infliction of harm are necessary for the or-
ganization and preservation of social groups. The injunction not to
injure other members of a society has been, with certain limitations and
exceptions, one of the chief foundations of natural law thinking. It
must be conceded, however, that this injunction has not been fully
recognized with respect to relations between a social group and those
considered by it as external or internal enemies. This does not prove
the incorrectness of the statement that it is a fundamental aim of the
law to curb human aggression but merely demonstrates that where hu-
man beings embark upon a campaign of violence and extermination it
is usually not the law which serves as their guide to action. Inter armas
leges silent. Where the law has entered upon the task of regulating
warfare, the objective has in most instances been an attempt to reduce
inhuman practices in combat or in the treatment of prisoners, rather
than to multiply the horrors of warfare.
12. HOBBES, DE CIvE 141-51 (Lamprecht ed. 1949).
November I964] NA TURAL LA W 45
These statements are not meant to imply that the law has not in
some historical situations been used as an instrument for the harass-
ment, oppression, and even extinction of groups. But it is exactly
against these types of laws that natural law doctrine has voiced its
criticism by raising the question of their binding force.
If the foregoing observations are true, the problem which gave rise
to this discussion may be within sight of an acceptable solution. The
problem was whether a theory of natural law grounded on the onto-
logical "is" of congruent ethical convictions and common elements in
legal systems may not be oblivious of the desirability to change the on-
tological "is" by normative attempts to improve the human condition.
Our proposed answer has been that those elements in legal systems
which, in Aristotle's language, have "the same validity everywhere,"13
consist essentially of intragroup restraints on outrageously antisocial
conduct and therefore constitute minimum precepts of morality and
law which are vindicated before the tribunal of human reason. A ra-
tional man could not persuasively argue that indiscriminate killing
should be permitted in an organized society, that rape and robbery
should be sanctioned, and that breach of contract should be encouraged
rather than discouraged. The natural law forming a common ingre-
dient in the laws of social groups therefore meets the ontological as
well as the axiological test. It is validated by empirical as well as nor-
mative considerations. This conclusion presupposes, of course, that a
civilized society is preferable to an order of barbarism and bestiality;
and, although this is a question of ultimate ends not amenable to strict
scientific verification, the value judgment implicit in the conclusion is,
in the words of John Stuart Mill, "within the cognizance of the ra-
tional faculty"'4 and also lends itself to a confirmation by empirical
proof of the general opinion of mankind.15 If the premise is accepted,
it becomes obvious that the values embodied in the universal compon-
ents of legal systems cannot be replaced by the opposites of these values.
Otherwise human life in society would become unbearable.
II
The second argument against the ius naturale discussed here is one
that might start out with a concession that the preceding observations
may be taken as correct. The sponsors of this argument would contend,
however, that the use of the term "natural law" as a shorthand de-
13. ARISTOTLE, op. cit. supra note 7, at 295.

14. MILL, UTILITARIANISM 7 (Piest ed. 1957).
15. This point is elaborated in Bodenheimer, The Province of Jurisprtdence, 46 CORNELL
L.Q.1 1(1960).
scription of the above-discussed approach to the la

misleading. Granting the existence of uniform leg
ent civilizations, it is said, this phenomenon ha
human nature. The point was made by Hans Kels
in which the following translated passage appears:
From the fact that human beings always and everywh
which regulates their mutual conduct no conclusion ca
order is rooted in their nature. Such an order compels
satisfaction of many impulses, especially of their aggre
are as natural as their cooperative impulses. The societal
as well as in conflict with nature conceived as a factual
Kelsen is unquestionably on sound ground when

man nature is contradictory, multiform, and part
tual urges, emotions on a lower and higher level, a
uents exist with varying degrees of strength in al
these different strata of human nature often confl
It must, however, be strongly denied that the co
plex structure of the human personality makes it im
derive the recurrent features of legal control from
facts concerning the nature of man. Natural law
edges that immorality, aggression, and antisocial im
ural reality; but it maintains that the nature of hu
normal circumstances, also contains social and r
which are utilized by the institution of law for th
about a livable social order. Even Thomas Hobbe
view of the human psyche culminated in the convi
in the state of nature have a desire and will to hur
human nature also comprises "Passions that enc
and that "it is easily judged how disagreeable a thin
either of mankind, or of each single man, a perpet
concluded that reason (which is a part of human
convenient Articles of Peace, upon which men may
ment."20 Other natural law philosophers emphas
structive components of the human personality
Hobbes."
It would therefore appear proper to state that the natural law doctrine
16. Kelsen, Die Grundlage der Naturrechtslehre, 13 OESTERR. ZTSCHR. OEFF. R. 1, 19-20
(1963). Cf. Cohen, Moral Aspects of the Criminal Law, 49 YALE L.J. 987, 994 (1940).
17. HOBBES, DE CivE 25 (Lamprecht ed. 1949).
18. HOBBES, LEVIATHAN 106 (Everyman's Lib. ed. 1950).
19. HOBBES, DE CivE 29 (Lamprecht ed. 1949).
20. HOBBES, LEVIATHAN 106 (Everyman's Lib. ed. 1950).
21. See, e.g., 2 PUPENDORF, 2 DE JuRE NATURAE ET GENTIUM 154-78 (Oldfather transl.
1934); 2 GROTIUS, DE JuRE BELLI AC PACIs, Proleg. 6, at 11 (Kelsey transl. 1925).
does not attempt to deduce the necessity o

consideration of human nature as a whole,
certain elements of this nature which inclin
havior and thus make an ordered and coh
same time the doctrine admits that there
nature, such as intractable pugnacity and gr
ness, which must be curbed to the extent n
of the basic purposes of social organization
This conception of natural law would a
patible with the findings of modern psych
choanalytic science. Present-day psycholo
an exaggerated degree, that man's make
irrationality. But psychoanalytic theory al
the human personality which Sigmund F
ego." This is a set of inhibitory norms wh
psyche and which is designed to cope with
conscious or subconscious instinctual te
pointed out that in the early stages of hum
superego are performed by an external aut
pose restraints upon the libidinous as well
pulses of their children. When the child att
strictive moral norms becomes, to use Freu
Parental authority is replaced by the supere
moral conscience, "then observes, directs, a
actly the same way as it was formerly done
Freud does not describe in detail how this
parental authority into an internalized mec
ship comes about; perhaps we shall never
It has been suggested that the superego dev
bitual identification of the child with the
ments. But since the phenomenon of yo
rental moral authority is a familiar one, it
suppose that the normal person, once he re
turity, selects those moral and social norm
in his own experience and judgment are ne
environment and getting along with his fe
be recognized that the social adjustment po
rarely entirely successful, and that antisoc
ing degrees, in everyone. As Franz Alexand
continuous conflict, even in normal pers
22. 12 FREUD, GESAMMELTE SCHRIFTEN 216 (1934). Se
OF PSYCHOANALYSIS 82 (1948).
48 STANFORD LAW REVIEW [Vol- 17: Page 39
adjusted instinctual tendencies and the restrict

ego. s23
There is a link between the supposition by natural law doctrine of a
rational nature of man productive of certain recurrent forms of legal
regulation and the inner assent of the adult human person to moral re-
straints upon instinctual drives assumed by modern psychoanalysis. That
the moral restraints on aggression which are imposed upon the child by
his parents and later accepted by him as necessary and proper overlap
to a large extent with legal prohibitions against homicide, assault, theft,
rape, slander, and other forms of proscribed conduct is clear. It may
therefore be said that natural law doctrine and psychoanalysis are deal-
ing here essentially with the same subject matter. On the other hand,
psychoanalytic theory seems to view the moral code as initially imposed
upon the human person by an outside agency, the parents, while natural
law theory tends to find it deeply rooted in the fabric of the human per-
sonality.
Psychoanalysis does not seem to have undertaken a searching in-
quiry into the relation between the command and acceptance elements
in the superego theory. If such an inquiry were made, it would almost
certainly yield two results. First, it would be discovered that the moral
code curbing destructive impulses cannot be held founded solely on
extraneous imposition, sanctioned by instillation of fear and threat of
punishment. The very process of "internalization" of the code through
its acceptance by the mature individual demonstrates that the phenome-
non of the moral and social conscience must have some anchorage in
the psychological structure of human beings. The fact that all societies
from early times have developed ethical systems24 shows convincingly
that there is a deep-rooted human need for normative control of in-
stinctual and irrational behavior.
The second result which the suggested inquiry is apt to produce is a
finding, based on modern anthropological research,25 that many of the
norms of social behavior transmitted to the child by the parents as a
part of the educational process and later absorbed by the superego have
a common axiological basis, not only on a community, but on a world-
wide level. Alexander's statement that the moral (and legal) code rec-
ognized as binding by the superego "is dependent upon the social en-
vironment and varies in different cultural milieus""6 embodies a limited
truth only. On this point the natural law doctrine can be shown to be
closer to a correct analysis of social reality than some versions of psy-
23. ALEXANDER, Op. cit. supra note 22, at 84.

24. Linton, Universal Ethical Principles: An Anthropological View, in MORAL PRINCIPLES OF
ACTION 645, 658 (Anshen ed. 1952).
25. See note 6 supra.
26. ALEXANDER, op. cit. supra note 22, at 82.
choanalytic doctrine; it must be emphas

unlimited diversity in ethical practice is
important part of the superego theo
analytic theory is probably correct in s
the moral urge is largely the result of d
while a study of natural law thinking,
tions, produces the impression that t
autonomous and innate in the personali
If this is or was the prevailing unde
trine, then this aspect of it is in need o
the ethical sense has its roots in hum
would not have produced ethical syste
similarities), it does not develop sufficie
and guidance and is in need of constant
couragement. Like the capacity to lea
most human beings as a potentiality wh
reality through educational direction, in
of a proper environmental atmosphere.
between natural law theory and psycho
scure the fact that both approaches
healthy human being, of a system of co
of the human personality after it has re
ment.
We conclude that Kelsen's view, whi
be deduced from nature, must be rejecte
only if natural law doctrine regarded m
nature as a primary source of legal pre
has never made this attempt. It has a
versal element in law stems from the r
nature, the existence of which is recog
theory in the concept of the superego.
III
Another criticism leveled against the

tates around the charge that this philoso
intolerance, monolithic thought, autocr
riers to human progress. Wolfgang Frie
Far from seeing in the revival of natural
return to absolute standards and values, I am
of it reflect the new trend towards intolera
of our so-called democratic societies, as we
tarian.27
27. Friedmann, "Natural Law," Letter to the Edit
Eugene Gerhart, directing his fire chiefly aga

proaches to legal philosophy, has stated: "As a
ism, . . . natural law provides an ideal found
premise."28 Robert Gordis, a Jewish rabbi g
revival of natural law in a modernized form, h
respect to the past history of this philosoph
are the advocates or practitioners of natural law
tiers of ethical thought. Historically, natural
evidence as a limiting and restraining factor i
a liberating principle making for growth and
Shuman asserted in a recent work that "natur
enviable achievements and its pragmatically ju
decision-making, tends to achieve its laudatory
dividual choice with group opinion"; it carries
"diminution of individual moral and political r
It is undoubtedly true that theories of natu
serve many different causes, and that natural
philosophies of intolerance, bigotry, and racia
on the user's view of "human nature." It must
that those natural law theories which are reco
representative and influential manifestations
subjected to the criticism indicated by the f
doctrines of the Roman Stoics, for example, st
in a political society which was far from being
ings, in conjunction with other causes, helped
slaves, to give women a greater measure of
crease the rights of children. The antinatio
outlook of the Stoic thinkers, coupled with th
and peoples, had some share in the granting o
inhabitants of the Roman provinces, who had
status of mere subjects of the Roman Empire.3
While St. Thomas Aquinas in his political
qualified support to the political and social i
society of his day, his theory of natural law, w
his legal philosophy, was completely devoid of
ance or glorification of the status quo. His c
principles of natural law included the right of
instinct, the education of one's offspring, the
28. GERHART, AMERICAN LIBERTY AND "NATURAL LAW" 11
29. GoRDIs, THE ROOT AND THE BRANCH 212 (1962).
30. SHUMAN, LEGAL POSITIVISM 207 (1963).
31. For an account of the impact of Stoic doctrine on Roma
op. cit. supra note 6, at 16-20.
November I964] NATURAL LAW 5I
desire to live in society, and the a

with respect to the concrete implem
ferent times and different societie
tude.32 This broad generality of th
bined with flexibility in their appl
non-Catholic thinker and liberal-mi
understand "how any decent man ca
of modern civilization, the funda
relative to human conduct, as stated
Most natural law doctrines of the
turies tended to serve the goals of f
opposites of these values. Grotius,
although they remained in the mai
the type of absolute monarchy char
ment," proclaimed codes of natural
look. Thomasius, for example, was t
against witchcraft trials, and he also
ture.34 Hobbes, even though he fav
ernment, sought to subject the ru
injunctions which place him far apa
totalitarian rule. Rousseau laid some
of modern democracy. To contend t
cates of a natural law theory char
absurd.
The revival of natural law thinking after World War II was di-
rected chiefly against the inhuman practices of certain totalitarian gov-
ernments. It would be difficult to find among the recent theories which
have attracted the attention of contemporary jurists any significant at-
tempts to legitimize new forms of medievalism or repression. The post-
war philosophy of Radbruch, the natural law jurisprudence of the West
German Supreme Court, the ideas of Verdross, and various versions of
neo-Thomist legal thought may be said to belong to the occidental tra-
dition of humanism. The charge made by Shuman that natural law
doctrine is apt to diminish individual responsibility is wholly without
foundation, since the majority of its adherents have held that under cer-
tain circumstances men should have the moral courage to resist com-
mands of the rulers which violate the most elementary axioms of human
decency.
32. 3 ST. THOMAS AQUINAS, SUMMA THEOLOGICA Qu. 94, art. 2, at 42-44 (Fathers of the En-
glish Dominican Province transl. 1915).
33. FRANK, Preface to LAW AND THE MODERN MIND at xvii (1949).
34. See BLOCH, NATURRECHT UND MENSCHLICHE WUERDE 315-53 (1961).
These examples suffice to show that a rejection

ground that it is an ideological cloak for monolith
of government is groundless. Liberal and huma
many good reasons for looking with favor on
fluential historical versions of the natural law
this doctrine, like any other political or social theo
tortion and abuse, the dangers which it conjures
much less conspicuous than the hazards produc
legal positivism. Positivistic doctrine refuses to r
limitations on legislative power and therefore
ideological justification for any political system w
tion can conceive. The following impressive wor
a useful reminder of this danger:
The Third Reich took legal positivism at its face va
the positivistic doctrine that the State-as the Hungar
wrote in I9I7-'may sanction any conceivable content
absolutely immoral content.' . . . Positivistic intellect
suggestion that a command to murder all blue-eyed ch
ceeds from the holder of sovereignty, now became a gr
IV
The last objection to the natural law theory dis

was elaborated by Hans Kelsen in several articles.3
natural law doctrine is untenable from a scientifi
it is predicated on a metaphysical belief beyond t
fication, namely, the existence of a just God. Kels
are necessarily decreed by some person or group
to conceive of norms that are not produced by an
"will" is immanent in natural reality as such, he ar
norms which, according to the natural law doctri
nature must of necessity be attributed to the mak
conception of a natural law independent of the w
a logical and philosophical impossibility.
Kelsen's thesis is not wholly convincing. Import
tural law thinking were founded on a nontheistic
ample, attempted to show that the law of nature
a theological or a purely rationalistic foundation.3
strated that there are recurrent and typical form
35. Welzel, Naturrecht und Rechtspositivismus, in NATURRECHT

322, 323 (Maihofer ed. 1962).
36. Kelsen, supra note 16; Kelsen, The Natural-Law Doctrine Before the Tribunal of Science,
2 WESTERN POL. Q. 481 (1949).
37. 2 GROTIUS, op. cit. supra note 21, Proleg. 10-11, at 13.
which are anchored in some traits or p

inquiry into the question whether hum
sonal deity endowed with "will" would
tural law philosophy does not assert th
or nature's God, but merely holds that
flow from certain attributes of human
prising to find that a great deal of th
problem of natural law avoids the theo
There is, however, a sound kernel
which must be extracted from the s
arguments. Natural law doctrine holds
kind are sufficiently strong to produce
groping in the dark) normative arrang
to control the indiscriminate use of
make a tolerable life in society possible
reality is an optimistic note, a conscious
balance-even though the balance may
good in this world exceeds the volume
mund Freud was in the later years of
stalemate between good and evil, so th
construction are always outbalanced and
and destruction,38 then it is difficult t
tural law which guarantees a minimu
tions of men and keeps in check the m
antisocial conduct. Such a natural la
could not form an affirmative basis for
not, despite temporary lapses and pa
prevail over unreason. This belief, alth
medieval belief that in the eternal a
and the devil the former will emerge a
sarily theological in character. But sinc
conclusively by evidence acceptable to a
law, it has a metaphysical foundation
history and of average human behavio
probable truth.
The natural law doctrine has not, of c
in history of destructive wars in whic
mutual relations of men were suspend
however, wars have usually involved on
lation, and the powers of devastation o
38. See FREUD, CIVILIZATION AND Irs DISCONTE
EGO AND THE ID 51-53 (Riviere ed. 1957).
It may be very difficult to maintain any belie

derance of reason over unreason, which under
trine, in an age in which the world is threaten
But even if the unlikely contingency should ha
be wiped out through a total relapse of govern
rationality and destructiveness, a student of hi
vivors might still conclude that the human
lasted, was a worthwhile one, and that despi
death, the majority of men did not consider th
existence preferable to existence.

The Case Against Natural Law Reassessed

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Stanford Law Review

The Case against Natural Law Reassessed

In I954 Professor A. P. d'Entreves delivered a series of lectures at the

* J.U.D., University of Heidelberg, 1932; LL.B., University of Washington, 1937; Professor

it the mission of his life to eradicate the last v

sponsive to certain ineradicable traits

6. For citations of literature and a brief account

higher forms of development, the number of common

This conclusion does not, however, se

1 1. 1 SPENCER, PRINCIPLES OF ETHics 204-05, 2

operative attitudes in human beings, it might expos

12. HOBBES, DE CIvE 141-51 (Lamprecht ed. 1949).

13. ARISTOTLE, op. cit. supra note 7, at 295.

scription of the above-discussed approach to the la

Kelsen is unquestionably on sound ground when

does not attempt to deduce the necessity o

adjusted instinctual tendencies and the restrict

23. ALEXANDER, Op. cit. supra note 22, at 84.

choanalytic doctrine; it must be emphas

Another criticism leveled against the

27. Friedmann, "Natural Law," Letter to the Edit

Eugene Gerhart, directing his fire chiefly aga

desire to live in society, and the a

These examples suffice to show that a rejection

The last objection to the natural law theory dis

35. Welzel, Naturrecht und Rechtspositivismus, in NATURRECHT

which are anchored in some traits or p

It may be very difficult to maintain any belie

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