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The Case Against Natural Law Reassessed
EDGAR BODENHEIMER*
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
39
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40 STANFORD LAW REVIEW [Vol. I7: Page 39
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).
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November I964] NATURAL LAW 41
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42 STANFORD LAW REVIEW [Vol. I7: Page 39
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.
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November I964] NATURAL LAW 43
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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-
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46 STANFORD LAW REVIEW [Vol. I7: Page 39
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).
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November I964] NATURAL LAW 47
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November I964] NATURAL LAW 49
III
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50 STANFORD LAW REVIEW [Vol. I7: Page 39
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November I964] NATURAL LAW 5I
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).
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52 STANFORD LAW REVIEW [Vol. I7: Page 39
IV
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November I964] NATURAL LAW 53
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54 STANFORD LAW REVIEW [Vol. I7: Page 39
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