If I have any legal philosophy at all, it is that Natural Law is the foundation of all laws, and that Natural Law is not something static but something that grows in the process of human evolution. So, my philosophy of law can be summed up in one phrase: a Growing Natural Law.
In the early 1920s I was in Germany studying legal philosophy under Rudolf Stammler, the neo-Kantian, who was recognized as the leading philosopher of law. It was he who used the expression ein Naturrecht mit einem wechselnden Inhalte, that is, "Natural Law with a variable content." On the surface, the two expressions: "Natural Law with a variable content" and "a growing Natural Law" may seem to connote the same thing. But there is a fundamental difference between Prof. Stammler's idea and mine. Actually, he did not believe in the natural law, which he regarded as a metaphysical notion. He used that expression only figuratively in the first edition of his great work Wirtschaft und Recht (1896) as the title of Section 33. But in the second edition (1906) it was replaced by Die Moglichkeit eines objectiv richtigen Rechtsinhaltes. As a good Kan-tian, he was a critical idealist, who wished to steer clear of all metaphysical or ontological presuppositions and involvements. Although he claimed for his Concept and Idea of Law a universal validity, Algemeingültikeit, it has reference only to the human mind, which cannot speak for the metaphysical world. On the concept of law, his inquiry is "What is the universal signification of the term 'Law?'" He works it out step by step as follows: (1) All the various forms of human experience are either perceptions or volitions. Now, Law obviously belongs to the realm of volitions. So it is to be defined in terms of "will." (2) Human will has to do either with one's inner life or with life in the community. Now, it is evident that Law has to do with communal life. So it should be defined in terms of communal will. (3) Communal will can express itself in two ways: either as conventional rule, which we are free to follow or not to follow, or as obligatory rule, which we are compelled to observe by an external authority. It is plain that Law belongs to the latter class. Therefore, Law is obligatory communal will. (4) But a merely obligatory communal will is not yet Law. In order to be called law, it must not be an arbitrary command even from the sovereign. The notion of Law implies a stable order, that is, it is something which cannot be violated and altered at the mere whim of the sovereign. So Stammler arrived at the Concept of Law as inviolable, obligatory communal will.
By the Idea of Law Stammler meant the Idea of Justice, which he defines as the directing of a particular legal volition according to the conception of a pure community of free-willing persons. From this excessively abstract idea, he worked out four universal principles of just law, which fall into two categories, the principles of respect and the principles of participation. The first category has to do with the respect for the human person; while the second has to do with means of existence. The principles of respect are: (1) "The will of one person must not be made subject to the arbitrary will of another." (2) "Every legal demand can only be maintained insofar as the person obligated can still remain his own neighbor." The principles of participation are: (a) "No member of a legal community shall be arbitrarily excluded from it." (b) "Every power of disposing can be exclusive only to the extent that the person excluded can still remain his own neighbor."
It should be noted that to remain one's own neighbor means, in the first context, to maintain one's human dignity, and, in the second context, to be able to maintain his existence as a human being.
These principles are deeply humanistic; they are based upon man's dignity and his existential needs. But Stammler seems to me have made his philosophy unnecessarily complicated and artificial by his predilection for logical derivation. I do not see how these principles are derived from the idea of a "pure community of free-willing persons." I rather think that it was Stammler's vigorous moral sense and Christian outlook on life and law that were responsible for the formulation of these principles. I myself would not hesitate for a moment to include them under principles of the natural law.
My present attitude toward Stammler's philosophy of law and justice is very much the same as that expressed by Gilson toward Kantism when he said, "Perhaps Kant's ethics are but a Christian ethic cut loose from the Christian metaphysic that justifies it, the still imposing ruins of a temple with undermined foundations."
Now, when I was studying under Stammler, I was keeping up a correspondence with Justice Holmes. No two minds could be more different than these great men in the law, although I admired and loved them both. Where Stammler says, "Law is the inviolable, authoritative, communal will;" Holmes says, "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Where Stammler harps upon the "logical prius" in legal discussions, Holmes declares: "The life of law has not been logic: it has been experience." Stammler lays the greatest emphasis upon form as against matter: "Form, as the method of ordering, can be discussed independently; matter, as the methodically determined constituent of the concept cannot be so treated." Holmes, on the other hand, had no use for forms. He wrote me in one of his letters (September 20, 1923), "Just after sending my last letter to you, a further thought occurred to me with regard to the forms of thought. Whatever the value of the notion of forms, the only use of the forms is to present the contents, just as the only use of a pint pot is to present the beer (or whatever lawful liquid it may contain), and infinite meditation upon the pot never will give you the beer."
To my mind, both of them were right in their own way. I wrote an article on ''The Juristic Philosophy of Justice Holmes" which appeared in the March number (1923) of the Michigan Law Review. I called Stammler's definition of law the "Conception of Law," and Holmes' the "Perception of Law." I maintained that it takes both the conceptual knowledge and the perceptual knowledge to know the law completely. In fact, I went to the extent of saying that the essential nature of law must be sought in the whole of our consciousness; and that nothing short of complete knowledge should be the aim of the philosophy of law. I said that both conception of law and perception of law presuppose the law as a thing-in-itself. Thus, they "both point to a unity which is manifested in their very difference." If it takes logical reasoning to arrive at the conception of law, and it takes experience and psychological insight to get a perception of law, it takes intellectual intuition to comprehend law in its ultimate reality and integral whole. In other words, in order to reconcile and harmonize the opposite views of Holmes and Stammler, we are compelled to rise to a higher point of view, this was the gist of my article.
You may be surprised to hear that the article won the approval of both. Holmes wrote me: "Your second installment moves and commands my sympathy. I am glad to see you on the side of the Ding an sich, which seems to me to follow the moment we admit that the world is not a dream. I do not quite see, however, that it is absurd to think that there could be a perception or a conception without something (e.i. something independent of the perceiver) which is perceived or conceived. Isn't that what happens in a dream)?" Again he wrote: "I like your rapture over the law. I only fear that it may be dimmed as you get into the actualities (in the sense of the hard side) of life. But if, as I hope and as what you write indicates, you bear the fire in your belly, it will survive and transfigure the hard facts" (February 5, 1923). Stammler went to the extent of writing a special discussion of my article, which was published in the May number (1923) of the Michigan Law Review. He approved of my taking the existence of law for my point of departure. He agreed perfectly with me that "the essential nature of law must be sought in the whole of our consciousness," and that "psychology and epistemology have to complement each other." While he still maintained the priority of logic and pure forms, he recognized the importance of a synthesis between the conceptual and the perceptual, or the a priori and the empirical. He summed up the result of his discussions in this way:
In the interest of theoretical clearness, we are obliged to analyse
critically the composite ideas in which our life moves. We must bring to
light the synthesis in the harmonious inter-connection of parts, and
discern therein the logically conditioning thoughts which we call pure
forms.
In the interest of practical action, we need a unification of form and
matter. The former enters into the sensible reality only as a mistress of
matter, and the latter has no sense and significance without the
conditioning form. Here we do not dwell upon the antithesis: what we
want is a complete and symmetrical whole.
This is as much as one could have expected him to concede.
The fundamental and persistent tendency of my mind has been to transcend and harmonize one pair of opposites after another. Just as in the field of epistemology I have tried to transcend and synthesize the conceptual and perceptual, so on the question of natural law I have tried to transcend and synthesize the immutable and the mutable, the permanent and the changing.
When I started out as a student of law, there were two classes of jurists in America. One class believed in the natural law and natural rights, and they were mostly conservatives. The other class denied natural law and natural rights, advocating that all laws and rights are derived from the state or the people and are subject to change and relative to sociological conditions, reasons of state or public opinion. A majority of judges on the Supreme Court in the early decades of this century had been brought up in the tradition of a purely individualistic philosophy of law, which they had come to look upon as natural law. They interpreted the Constitution in the light of that philosophy. They were dead set against such social legislation as Workmen's Compensation Acts and Minimum Wage and Maximum Hour Laws. To make the employer pay for unavoidable accidents is to hold him liable without fault, so they argued, and that would run counter to the natural law principle that there should be no liability without fault. Likewise, to lay down minimum wages and maximum hours would be to violate the sacred liberty of making contracts. The laborers were after all not wards of the state; and being adults they should be left free to accept or not to accept any terms of employment without paternal interference on the part of the government. So they declared all such measures unconstitutional. For a time Justice Holmes was often the only dissenting voice, although later he was usually joined by Justice Brandeis. In his most famous dissent in Lochner v. New York, (1905) he declared, ''The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." He further said, "General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any major premise." I believe it is no exaggeration to say that an overwhelming majority of law students at that time were in sympathy with the dissents of Holmes in all these cases. To me who was always interested in legal philosophy, Holmes' dissents were in consonance with the spirit of natural law, whereas the majority of judges who attributed their absurd views to the natural law were actually abusing its name.
However, Holmes himself, mistaking their distortion of the natural law for its genuine version, came to regard all philosophy of natural law with a sweeping aversion. In an article on "Natural Law," he wrote:
It is not enough for the knight of romance that you agree that his lady is
a very nice girl - if you do not admit that she is the best that God ever
made or will make, you must fight. There is in all men a demand for the
superlative, so much so that the poor devil who has no other way of
reaching it attains it by getting drunk. It seems to me that this demand
is at the bottom of the philosopher's effort to prove that truth is
absolute and of the jurist's search for the criteria of universal validity
which he collects under the head of natural law.
Concerning this point I wrote him: "In your 'Natural Law' you state that 'the 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.' This is true. You did not hint, however, that what makes the jurists or any other men, for that matter, believe such things to be natural law is itself a natural law which is very real and which we may term 'psychological natural law.' And psychological natural law is not the highest form of natural law either. The highest form, to my mind, is Natural Law in the philosophical sense. When the jurists - I mean the sociological school - say that there is no such thing as an immutable, unchangeable natural law, they are unconsciously proclaiming a principle which is itself valid in all times and places. In other words, their statement denying the existence to the pseudo natural law is really establishing the genuine Natural Law, which requires change and growth in human institutions and makes possible the evolution - the conscious evolution - of mankind. Your later remark 'We do know that a certain complex of energies can wag its tail and another can make syllogisms' comes very near to the point I am driving at; and your question 'Why should we employ the energy that is furnished to us by the cosmos to defy it and shake our fist at the sky?" expresses my conviction in other terms. I take 'cosmos' or 'sky' as an embodiment of what I insist on calling Natural Law. But why should I split hairs with the terms, while I am sure that we have exactly the same thing in mind? Well, the simple reason is that jurists in general are conservative in their use of terms, and will not yield up their 'natural law' unless we show them that they have only visualized the back of the Natural Law - just as Moses saw the back of God - and that our vision of Natural Law, which, like the face of God, is everglowing, vivid, expressive of internal feelings, responsive to external changes and looking forward to the welfare of Humanity, is a truer vision of Natural Law. The habit of the lawyers has been to preserve the form while changing the contents" (January 8, 1922).
I would not put it exactly the same way now. But the desire to embody both the element of permanence and the element of change and adaptability in the notion of natural law was clearly present from the very beginning of my juristic career. But the relative proportions between the two elements in this early vision of mine were so overwhelmingly inclined to the side of change and growth as to amount practically to saying that the only thing that is constant in the life of law is change!
My present view can be presented in a few words. Natural law is derived from eternal law, but it must not be confused with eternal law, as is the case with practically all the seventeenth and eighteenth-century natural law philosophies. Eternal law is another name for Divine Reason, and therefore it is absolutely perfect and admits of no change or growth. On the other hand, natural law is only an imprint of Divine Reason on our nature. In the words of Thomas Aquinas, it is "the rational creature's participation of the eternal law." He further says: "The human reason cannot have a full participation of the dictate of Divine Reason, but according to its own mode and imperfectly." As it is "natural for human reason to advance gradually from the imperfect to the perfect," our participation of the eternal law grows gradually in perfection paripassu with the progress of our reason. Since the natural law is defined in terms of "participation," the growth of this participation is the growth of the natural law.
Let me explain this by introducing an analogy drawn from the Christian theology. Everyone knows that eternal law is not the same as the Word of God; but there is a close analogy between them.
The Word as He is in Himself is eternal and beyond change and growth. But the Word incarnate lived in the realm of time and "advanced in wisdom and age and grace before God and men" (Luke, 2:52). Similarly, the eternal law in itself is beyond growth and change; but when "incarnate" in human nature and in human institutions, it exists in time and has to advance in extension as well as in refinement.
There is an immutable core in natural law. Certainly, its primary principle that we should do good and avoid evil does not admit of any change. So are some of its proximate conclusions or concretizations such as the Golden Rule in both its positive and negative forms. For the purpose of law, Ulpian's three precepts: To live honorably, not to injure another and render to each one his due, may be called a juridical concretization of the primary principle of natural law. But as civilization grows and human reason becomes more and more subtilized and refined, man's conceptions of what constitutes honorable living, of the kinds and degrees of injury, and of the contents and scope of each man's due, must in the normal course of development gain in depth and richness. In this way, the natural law may be said to grow around the core and at its periphery which borders on human law. This is what Aquinas meant when he declared, with a refreshing candidness that the natural law is susceptible of change by way of addition. He even thought that in certain rare cases the natural law may undergo a change by way of subtraction. That is, a secondary precept of natural law may be found to be inapplicable under certain particular circumstances, and an exception to the rule emerges.
Modem American jurisprudence furnishes us with many examples of the growth of the natural law through the judicial recognition of new natural rights or wrongs which had not hitherto been considered as such, for instance, the right of privacy, the wife's right to consortium, the children's right to the society of their parents, the right to recover damages for prenatal injuries, the breaking down of privity in the law of contracts so as to extend its remedies to the third-party beneficiaries, the law of unjust enrichment and restitution, and the spite-fence cases and cases of other abuses of rights. True, the courts are institutions of human law; but in all such cases the substance of the natural law has grown immensely through the implementation of human institutions. These are good instances of what Aquinas called a change in the natural law by way of addition.
As for changes by way of subtraction, there could be no better example than the acts of social legislation which I have already referred to. That there should be no liability without fault is a principle of obvious justice, and therefore may be considered as a secondary precept of natural law. But the modern industrial situation has created an exception to the rule; and at the same time the exception has proven to be a new shoot from the natural law which has in the course of a few decades blossomed forth into flowers of social justice.
In conclusion, let me say that the eternal law, the natural law and human law form a continuous series. The natural law is a bridge with one foot on the eternal law and the other on the human law. Viewed from the side of eternal law, the aspect of immutability comes to the fore; whereas, from the side of human law, it is the aspect of mutability which becomes more notable. Hitherto natural law writers have looked almost exclusively at the eternal law end of it, and have tended to think of the whole body of natural law as immutable, even including the minute details. On the other hand, the sceptics of natural law have focused their attention entirely on the human side of it, and have come to deny all immutability even to the primary precepts of the natural law. Legal philosophy will only come to maturity when it is open-minded enough to take in the whole view of the natural-law landscape and to enjoy its mountains as well as its rivers. Confucius once said, "The good take delight in mountains, the wise take delight in waters." We may likewise say that it takes both goodness and wisdom to make a true Philosophy of Law.