Revue de la B.P.C. THÈMES I/2014

accueil mise en ligne le 2 avril 2014

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The interpretations of natural law

par Aymeric d’Alton*

A general definition of natural law theory would start in asking whether there is something beyond the positive dimension of the law which cannot be defined as positive law, but remains a substantial part of the law.

On the one hand, the positivistic answer would assert that there is nothing beyond the formal expression of the law made by the judge and the legislator, that there is nothing beyond the positive law.

Analogously, it might be noticed that some natural law thinkers would paradoxically add that there is nothing beyond the scope of human nature, understood as practical reason, at the foundation of law. The difference between legal positivist thinkers and natural law thinkers would be more a difference in degree than a difference in kind. So that it might be possible to describe such a position as a positivistic interpretation of the natural law[1].

On the other hand, a non-positivistic answer would assert that there is something beyond the formal expression of the law made by the judge and the legislator. Analogously, coherence would require natural law thinkers to say that there is something beyond the scope of natural law as well.

When he focuses on the theory of natural law, the legal scientist implicitly acknowledges the complexity of the rule of law. The existence of the rule of Law actually implies several complementary levels of expression.

The Law can have a positive expression through statutes or any means of formal expression; this is a level of the expression of law which cannot be confused with the Law itself. Deeper than the positive level of expression of law lies the natural one, usually known as natural law, a part of what expresses the law. This means firstly that the Law not only has a natural development before having a positive development, but relies on a progressive intellectual effort which unveils not only its natural form but its positive form as well. This means, therefore, that there could not be any positive expression of the law without a natural expression of the law, that secondly there could not be any natural expression of the law without any presence of the law itself, thirdly that neither the positive expression of the law nor the natural expression of law can run out of the Law.

The following answer has made clear the fact that there is a genuine mystery about the definition of law.

Nevertheless, if the Law cannot strictly be defined, that means that its components cannot be defined as law. If the Law cannot be defined, then the natural expression of the law cannot be defined. Therefore, the interpretation of the law starts with a genuine issue related to its identity and expects the legal thinker to determine the first object of his thought when he claims to make a survey on natural law. The first object of natural law thinking is Justice. However, once the mind focuses on this object, he is jeopardizing the ontological statute of this value and realizes that the progressive understanding of justice generates some levels of comprehension, of which natural law takes part.

The exclusive concern of this paper is to focus on the natural expression of the law which, according to the orientation of the human mind, receives multiple interpretations. It is not the purpose of this paper to raise any practical issue in light of natural law. The present paper would rather to question the intellectual effort that the legal scientist must carry out to grasp some knowledge in natural law. The so-called natural law is interpreted according to the traditional philosophical orientations the human mind. The traditional idealistic and realistic standpoints thus determine two different conceptions of natural law, the illustration of which can be found among the steps of legal thought. Firstly a realistic interpretation of natural law opposes to an idealistic interpretation of natural law. Secondly, overcoming the distinction made above, a renewed notion of natural law deserves a special attention. These points must be more developed.

Three hypotheses may be exposed.

First of all, from a realistic point of view, is natural the part of the law, the content of which belongs to the nature of things. Natural law is thus the law inferred from the nature of things according to which man organizes his life and life around him. The common good of the species is determining the rule to apply and the internalization of the rule of law[2]. This interpretation will be developed in a first part (I).

Secondly, from an idealistic point of view, is natural the part of the law the content of which belongs to the ability of practical reason to realize its own essence. Practical reason deduces the rule of law from the universality of an initial proposal of justice. This moment historically sets the subject in the legal discourse and at the roots of the natural law. Given that this goal is commonly shared by the members of the human genus, this goal constitutes the common good of the human community. The exclusively human common good is thus the main goal of the natural law[3]. This interpretation will be developed in a second part (II).

However this distinction does not run out of the complexity of the interpretation of natural law, since it has been overcome throughout the contemporary legal thought. Overtaking this distinction especially requires a dynamical understanding of the functioning of the human mind. The human mind activity, far from being limited to the expression of reason, implies different abilities; emotional abilities, valuation abilities and intuitive abilities. Given this broaden conception of the human mind abilities, a renewed notion of natural law is not surprising and must be acknowledged by any legal scientists. This interpretation will be developed in a third part (III).

At last, and here remains the main intention of this paper, given that Natural law remains a concept of law, any lawyer must acknowledge that its conceptual feature requires it to be questioned by means of the philosophical enquiry. Being subjected to the idealistic and realistic dispute is then a constant and everlasting feature of the interpretation of natural law[4]. It is therefore relevant to carry on such a methodological frame rather than an historical one to give a substantial account of the interpretation of the natural law theory[5].

I. Natural law and realism

The realistic interpretation of natural law implies two processes which respectively grasp the ontological content of natural law and frame the discourse on the content of natural law. Both are complementary and constitute a systematical process of understanding intentionally oriented towards the ontological content of natural law. A first part (A) will briefly define the process of cognition and the process of inclination. A second part (B) will focus on their complementarity which, once denied, gives birth to the naturalistic fallacy argument.

A. Recovery of a Classical distinction: knowledge by cognition knowledge by inclination

1.The notion of knowledge by cognition

The discourse in Natural law finds its foundation in rationality. Any logical and conceptual form remains necessary to discuss the natural law principles, so that reason remains a necessary tool of which the development and dynamism must be taken into account in any survey on the principles of natural law. The development of reason in the natural law theory cannot happen by means of reason itself but within the relation between reason and the order of things towards which the mind focuses its attention. Reason only acts within the limits of intentionality, so that the dynamism of the act of reasoning on the natural law principle happens within the dynamism of intentionality.

Within the boundaries of the activity of the mind, reason frames any speech about the content of natural law from the existence of indemonstrable principles. The indemonstrable principles in natural law are those which constitute the starting point of the reasoning, starting point, the existence of which cannot be demonstrated by the single act of reasoning[6]. Nevertheless, being principles and constituting the starting point of a substantial speech on the content of natural law, any logical meaning, soundly reported by a conceptual frame, finds its roots in this first indemonstrable principle[7].

At least within the boundaries of cognition, reason starts acting within the contents of the first principles of natural law in a first step, then and in a second step reason is acting within the limits of the activity of the Mind,. The matter of the content of natural law, especially the definition of the first principles at stake in the content of natural law, refers to the content of the order of things, the knowledge of which belongs to inclination.

2.The notion of knowledge by inclination

Human beings act according to their nature. This “according to” marked the natural law which defines the quality of human actions. Nevertheless, the definition of the natural law remains more subtle when this “recte factum” is unveiled. It is clear that, as Jacques Maritain said, “ [….] the judgments in which Natural law is made manifest to practical Reason do not proceed from any conceptual, discursive, rational exercise of reason; they proceed from that Connaturality or congeniality through which what is consonant with the essential inclinations of human nature is grasped by the intellect as good; what is dissonant, as bad”[8]. The scope of the natural law does not only implies the genus of human being, but the the metaphysical order of the nature of things in which human nature is implied as well. The inclination process is directed towards this content, which, then, becomes the object of the intellect.

The first principles which frame the reasoning on natural law principle are “immediately known (that is known through inclination, without any conceptual and rational medium) of human morality”[9]. Inclination might be defined, according to a sensitive path, as a special presence to the natural law and the metaphysical order of things. An interesting analogy might be made between the concept of inclination and the concept of sympathy. The act of sympathy tends to unify the intellect and the things referring to their common ontological background[10]; as a far cry from Maritain’s conception of connaturality, Sympathy of the intellect with the order of things and the human virtues seems to be relevant with the consonance described above by Maritain. Without such a consonance, no inference from the principles of natural law would be possible, to the point that cognition would be deprived of any object. At last, the inclination process illustrates that, at some point, it cannot be deprived of the process of cognition, as the latter cannot be deprived of the inclination process. In a realistic interpretation of natural law, both are absolutely indivisible[11].

B. Indivisibility of cognition and inclination in the process of knowledge of natural law

The process of cognition and the process of inclination cannot be kept separated from one another. Their existence in the process of knowledge requires them to be complementary and such a complementarity cannot be denied. It will be shown in a first part (1) that if knowledge should be reduced to cognition, natural law would be deprived of any ontological content. Conversely it will be shown in a second part (2) that if knowledge should be reduced to inclination, No rational discourse on the content of natural law would be possible.

1. Insufficiency of cognition of legal things without inclination towards natural law.

The necessity of the cognition process to frame any logical discourse on the content of natural law has been pointed out. However, the cognition process cannot claim any autonomy to frame this discourse unless being deprived of the inclination ability. In the realistic interpretation of natural law, the cognition process starts from the first principles, from the content of natural law. This principle exists as long as inclination is still at work. The consonant aspect of the principle makes possible a sound discourse on the content of natural law. Therefore, the starting point of the reasoning is dependent on the process of inclination in as much as, if the inclination process was missing, no logical and rational discourse about the content of natural law would be possible and would conseauently jeopardize the single ability of reason to make any claim on the content of natural law. Getting a rid of the inclination process would drown natural law in unintelligibility. From a strictly legal point of view, the law would be deprived of any content and reduced to the single expression of the judgment or the single form of administrative decision made by congress. In the meantime, this observation soundly illustrates the inherent contradiction which constantly undermines legal positivism.

2. Insufficiency of inclination towards natural law without the process of cognition

Nevertheless and conversely, it does not mean that the content of natural law would gain some intelligibility if the intellectual process, directed towards the content of natural law, was limited to the process of inclination. As Yves Rene Simon rightly points out, “the rationalization of what has been already grasped by inclination is a perfectly normal aspect of our understanding of natural law”[12]. At this stage, denying any value to the rational discourse on the content of natural would deprive the law of its systematic and institutional dimension. Therefore the question is whether the law is socially possible without the inclination process directed towards the content of natural law. The naturalistic fallacy actually refers to this issue and, arguing that no sound knowledge related to the law can be inferred from the nature of things object of the process of inclination, assumes that the content of natural law must be reduced to the natural law of man and deduced from practical reason. From a realistic standpoint, the theory of natural law skips to a new natural law theory consistent with an idealistic interpretation.

II. Natural law and idealism

The immediate origin of the idealistic interpretation of natural law finds its source in the naturalistic fallacy argument. This new development of the natural law theory asserts that no “ought to be” can be inferred from the being. This argument originates in Hume skepticism and the development of the empirical argument.

In light of the naturalistic fallacy, the scope of the nature of things is explicitly reduced to human nature at the core of the natural law. Such a reductionism deeply strikes at the foundations of legal philosophy. In a first step, the nature of things tends to be reduced to the scope of human nature. However, partaking to the nature of things, human nature itself endures in a second step the consequences of such a reductionism. At least, human nature is reduced to a single rational form deprived of any emotional and physical feature. Finally the entire scope of the mind is reduced to the activity of reasoning, to practical reason.

Using the concepts of the realistic interpretation, the principle of inclination disappears. The principle of cognition is explicitly claiming to give a foundational account of natural law.

The epistemological break occurring between the being and the “ought to be” in philosophy in general, in legal philosophy especially, immediately transforms the content of the natural law. Since the first principle cannot be inferred from the nature of things anymore, since no juristic order can find its roots in any ontological content anymore, practical reason remains the single content of natural law from which principle of natural law may be deduced.

Such a radical position is basically argued by John Finnis. His position will be examined in a first part (A). However, such a rationalist and idealistic point of view cannot be maintained consistently without any objection. Even the activity of reasoning cannot deprive itself from a contextual environment and require a minimal content to develop itself[13].

Two possible alternatives to Finnis’practical reasonableness deserve a special attention, despite they do not argue for the recovery of the ontological content of natural law. Alasdair MacIntyre and George Gurvitch’s positions will be examined in a second part (B).

By recovering the tradition to ensure a minimal content to natural law, Alasdair MacIntyre makes an argument against Finnis’rationalism. Gurvitch, is very well known to argue against rationalism and especially the idealistic interpretation of natural law, so that his normative facts theory overcomes Finnis argument. In the meantime, if a closer look at MacIntyre’s argument may reveal that he maintains a form rationalism, which strongly differentiates him from Gurvitch. Gurvitch has always suggested an intuitive form of knowledge which might seem analogous to the process of inclination. However, as MacIntyre and Finnis, Gurvitch never considered the ontological content of the law as the first object of the Mind.

Finally, it must be carefully understood that none of the present legal theorists intend to recover the ontological content of the law and carry on the idealistic argument, whether they want it or not, formulated by the modernity.

A. Natural law and practical reasonableness John Finnis’ interpretation of natural law

Despite all thomistic appearances, it is hardly possible to find anything consistent with Aquinas’account on natural in John Finnis’new natural law theory. Aquinas’realism and metaphysical commitment implies that values can be inferred from the being (1), that the cognition process works according to the ethical paths unveiled by means of inclination (2), that the content of natural law is defined by a set of indemonstrable principles which depends on the metaphysical foundation of natural law exclusively (3). In Natural law and natural rights, Finnis explicitly denies any value to these commitments so that he fails to recover the realistic interpretation of natural law, and develops an idealistic interpretation of natural law by means of the concept of practical reasonableness.

1.No value can be inferred from the being

Historically, the classical interpretation of natural law always relied on an ontological content, granted by a theological background or not. The Aristotelian account of natural law restitutes the content of natural law by refering to the nomos kata phusein. The order of things is grasped by means of inclination and abstracted from the nature of things by means of the analogical reasoning. Moreover, a conceptual form object of cognition, the order of things constitutes the content of natural law and makes possible any discourse related to this content.

The naturalistic fallacy argument strikes precisely when the outcome of the inclination process is abstracted from its content through the process of cognition to become a concept. In other word, this argument strikes when the mind, having just grasped the order of things, framed the concept which makes possible any discourse on the content of natural law. Finnis’standpoint is then totally consistent with the natural fallacy argument. Using Aquinas’discourse, Finnis dares to assume that “for Aquinas, the way to discover what is morally right (virtue) and wrong (vice) is to ask, not what is in accordance with human nature, but what is reasonable. And this quest will eventually bring one back to the underived principles of practical reasonableness – principles which make no reference at all to human nature but only to human good”[14].

Therefore, when Finnis denies that the first principle of natural law cannot be inferred from human nature, Finnis denies any ontological content to goodness so that practical reasonableness, in other word the cognition process, remains the exclusive content of natural law.

2.Practical reasonableness as content of the new natural law theory

Finnis’account of natural law decisively asserts the autonomy of practical reason. Practical reason is setting its own principle of moral organization to reduce natural law to a purely formal and conceptual content. Practical reason is working according to a coherent plan of life carefully sets by itself[15]. This coherence will have to be made reasonably, that is, in light of a rational judgment[16]. Legal existence of values and persons depend on their conformity to the standard of practical reasonableness. Interestingly enough, Finnis’account of practical reasonableness is so clear and pure that any comparison with Kelsen’s pure theory of law would not be surprising. This is so true that we must keep in mind that, in Kelsen’s pure theory of law, the existence of the grundnorm exclusively depends on the mind who thinks of it[17].

3. The content of natural law is defined by a set of indemonstrable principles

Taking into account what has been developed above, it might be argued that Finnis’new natural law theory provides some content. Actually, Finnis takes a great care to explain in an entire chapter that there are some pre-moral basic values which provide the content of natural law. It might be noticed that these principles are not pre-rational, but only pre-moral. It has already been said that practical reasonableness defines the principle of morality so that the existence of these basic principles depends on their practical reasonableness, in other words on their compatibility with human well-being[18] and practical reasonableness. Practical reasonableness is one these basic pre moral principles. Therefore, it is not wrong to assume that practical reasonableness constitutes this human well-being and generates practical reasonableness. The content of natural law relies on a typical circular reasoning which proceeds from the ability of practical reasonableness to generate its own existence and content. Such a circularity, as the one described above, is a characteristic of the modern idealistic trend which would not have any existence out of the existence of the naturalistic fallacy argument.

Given the subjective aspect of practical reasonableness at work in the new content of natural law, it can be added that the universal content of natural law is, therefore, necessarily inter-subjective, although this concept is not explicitly used by Finnis. At this step of the reasoning, it must be added that no theory of natural would be possible out of the reign of the practical reasonableness. Practical reasonableness is therefore the exclusive principle of intelligibility of natural law, which is nevertheless and paradoxically impossible, since the mind has been deprived of the primary and ontological object which granted the intelligibility of its activity. At least, practical reasonableness is doomed to circularity to ensure the existence of natural law. Overcoming Finnis’contradictions therefore implies a commitment towards the recovery of the process of the content of natural law and the acknowledgement of the process of inclination towards the first principles of natural law.

B. Beyond Finnis’ practical reasonableness

Since Finnis’account on the practical reasonableness undermines the intelligibility of natural law, since Reason has erected itself at the foundation of the natural law and replaced the natural order of things from which the content of natural law was used to being inferred, the survival of the idealistic interpretation of natural law is doomed to recover the content of natural law to provide some intelligibility to any discourse about natural law. Such a recovery might be provided by tradition according to MacIntyre (1). Beyond the exclusive recovery of a contextualized reason by means of tradition, Georges Gurvitch might provide a means to recover the inclination process into the process of interpretation of natural law (2).

1.Alaisdair Mac Intyre’s reference to tradition

MacIntyre’s starting point is deeply immersed in a skeptical assertion. According to MacIntyre, the ontological content defined by the ancients disappears or remains inaccessible[19]. This means that neither inclination nor cognition would constitute a sound foundation for ethics. More than ever, skepticism finds its perfect illustration in emotivism: “Emotivism [….] rests upon a claim that every attempt, whether past or present, to provide a rational justification for an objective morality has in fact failed”[20]. The emotivist interpretation of natural law cannot provide a valuable account of the content of natural law, since natural law would fail in relativism. Therefore, if contemporary times are lost in skepticism and have failed in giving an account of the content of natural law, whether the issue can find its salvation in history of philosophy and, especially, in the legacy from the enlightment which engendered the roots of skepticism?

Therefore, MacIntyre commits himself to recover the content of natural law which has been eradicated by Finnis. At this stage, the issue remains to know whether the enlightment’s project offers any substantial argument to overtake the emotivist’s skepticism. However, questioning the enlightment’s project, MacIntyre assumes that “the joint effect of the secular rejection of both protestant and catholic theology and the scientific and philosophical rejection of aristotelianism was to eliminate any notion of man-as-he-could-be-if-he-realised-his-telos”[21]. At this point MacIntyre notes that the human being cannot achieve what he ought to be, since he has been deprived of his genuine ontological foundation. Deprived of his own nature, Man is reduced to reason. The inlightment’s failure finds its roots in the naturalistic fallacy which has deprived natural law from any ontological content[22]. Would he then acknowledge that Finnis failed as the enlightment’s project fails, since both projects argue that practical reasonableness remains the exclusive content of natural law? MacIntyre would normally have no better choice than assuming the recovery of the ontological content of natural law to come over the failure inherited from the enlightment.

Nevertheless, MacIntyre has never intended to recover the ontological content of natural law. Given that the ancient contextual account on the being has been devastated and lost, how can it be possible to recover any ontological content in the natural law theory without carrying on the failure met by the ancients and the enlightment. The lack of historical consciousness does not allow us to come back to the past, and dooms us to deal with what has already been transmitted and must be transmitted. Therefore, instead of coming back to the past, MacIntyre is not afraid to build on the ruins inherited from the past which constitutes the tradition. Some remnants, and especially Aristotle, of the ancient content of natural law would then contribute to rebuild the content of the new natural law[23]. It will be noted that MacIntyre take a good care to suggest a recovery of the Aristotelian ethics exclusively. No recovery of the Aristotelian account on the being is suggested, so that, despites MacIntyre does not focus on the rational content of natural law, he is nonetheless focusing on the existence of virtue to justify the content of natural law. The content of natural law will result from the tradition in which a sound judgment will be exerted by the wise man.

In other words, MacIntyre asserts that a rational discourse on natural law is possible as long as it is the outcome of the virtue committed towards tradition[24]. The process of cognition still remains at the basis of the content of natural law mitigated by the traditional import. The traditional import is the feature which skips MacIntyre away from Finnis’ rationalism. However MacIntyre himself, as Finnis, has not been able to recover the ontological content of natural law as long as he limits this content to the commitment of reason towards tradition, without paying attention to the existence of the inclination process.

2.Georges Gurvitch : the normative facts theory v. new natural law theory

Georges Gurvitch especially argued against the idealistic interpretation of natural law inherited from the modern times[25], whose Natural law and Natural rights seems to be an avatar. Therefore, Gurvitch’s criticism against modern natural law may perfectly address to finnis’conception of natural law. However, it will be argued that Gurvitch’s recovery of inclination does not imply the recovery of any ontological content in the understanding of the law. Furthermore, such a commitment, as Gurvitch’s one on legal foundations, explains to which an extent these foundations are not only so alien to any rationalism and, in the meantime so indebted to idealism as well. Moreover, Gurvitch’s account against the idealistic interpretation of natural law cannot be understood without referring to his theory of normative facts, which basically signifies its denial of the realistic interpretation of natural law.

In a first step, Gurvitch mitigates the side effects of the naturalistic fallacy argument in claiming the existence of values may be inferred from the social facts[26]. In a second step, Gurvitch mitigates the hegemony of reason implies in the idealistic interpretation. Reason is nothing but the means to structure and frame the social reality through different form[27]. In a third step, Gurvitch recovers the intellectual intuition which, by its presence to values, provides the content rationally used to frame the social reality[28]. In a fourth and decisive step, Gurvitch identifies justice and the source of any legal system, at the precise moment when the dynamical axiological content of the intuition is rationally grasped and structured among empirical datas. Within this fourth step, justice is the normative fact which gives birth to any legal system. Justice is neither the absolutely dynamical pure content of the moral ideal of values nor the absolutely static and destructive immobilism of empirical data[29].

Justice, or the normative fact, is a recovery of the indivisibility of the classical processes of inclination and cognition explained above, a synthesis of values and empirical data through a process of objectivation operated by the mind. However, the process of objectivation means that the mind operates from the a-logical world of value to structure the more and more logical world of law. Therefore, not only it is true that the role of reason is mitigated in the determination of the content of law, it is true as well that intuition grasps an irrational axiological content, the form of which occurs by means of reasoning. Thus Gurvich maintains a rather negative insight as for the role of reason in the structure of the law. Nevertheless, he does not get a rid of it and reason still must take part to the existence of the normative fact. This is so true that, far from acknowledging the transcendence of the Being, Gurvitch’s thought explicitly assumes that the being is a category of the mind[30].

It is then clear that Gurvitch maintains that value cannot be inferred from the being. Values can only be inferred from the social facts, rationally framed according to the value objectified by means of the cognitive process. Therefore, Gurvitch supports, willingly or not, the naturalistic fallacy argument. This is so true that the ontological content of the normative facts exclusively relies on the activity of mind, and remains a single logical category of the mind. Although Gurvitch’s attempt does not recover the ontological content of the law nor overtake the idealistic interpretation of natural law, it demonstrates the irrational gap proceeding from the eradication of the ontological content of the law. The ought to be, which tended to be confused with the activity of reasoning, does not depend on such an activity as the reasoning one anymore. However, although the “ought to be” is an object of the mind, their existence still depends on the imputation of the being by the mind. In other words, value or the “ought to be”, which is the content of the law, might have a pre rational and intuitive status. However, and paradoxically, the “ought to be” does not exist out of the objective status conferred by the mind.

III. Natural law and ideal realism synthesis

The realistic and idealistic interpretations of natural law do not run out the scope of natural law. Both remain relevant in so far as both have given a possible interpretation of natural law. However, each interpretation is not substantial enough in itself. It suffices to point out the strong existential dependence of the idealistic interpretation on the realistic one. It suffices to remind that the existence of the idealistic interpretation does depend on the existence of the realistic one. So that it consistently may be added that strict realism and strict idealism are contradictory in themselves. Both may have some substantial truths in natural law theory as long as their existential link is plainly developed. Idealism and realism complement each other and may contribute to recover a substantial comprehension of the natural law theory.

Both tend to be integrated to one another, since none of them can be understood without the other. The idealistic conception of natural law rightly criticizes the analogical functioning of the realistic conception. Given the contemporary scientific and disenchanted conception of the universe, no sound ethical principles can be analogized from the nature of things to bring out some foundations to the law. The naturalistic fallacy argued by John Finnis might be the most extreme consequence of such a criticism. However, the idealistic conception of the natural law is wrong when it assumes the exclusive activity of practical reason as the fundamental basis of the natural expression of the law. The human reason itself cannot give birth to the Law. Reducing the intellectual activity to the activity of reason not only reduces the ability of the human mind but reduces the scope of reality through which the law tends to be expressed. That’s why the idealistic account the law must be understood as the reduction of the realistic account of the law.

Given the consequences of the naturalistic fallacy on the natural law theory, Realism cannot soundly assume an exclusively Aristotelian background without enduring some weakness. Such a weakness remains in its theory of representation, which abstracts principles from its real foundations. Given this conception, the content of natural law is abstracted from the things ordered according to their respective essence. Nevertheless, if the process of abstraction stops paying attention to the things and exclusively pays attention to its own activity, then The Idealistic interpretation of natural law substitutes the realistic interpretation of natural law.

To challenge this contradiction, which frames the interpretation of natural law, this part will focus on two traditions, respectively developed in the idealistic tradition and the realistic tradition. Both argue for a synthesis which restitutes the ontological relationship between the activity of the mind and the reality of natural law. However a distinction has to be made between both theories. The first one argues that the ontological content of natural law is still determined by the activity of the mind. The second one acknowledges the ontological activity of natural law which frames the activity of the mind. The first theory finds its main expression in the philosophy of law of Miguel Reale, whereas the second one has found its strongest expression in the contemporary emotional import. This enquiry on the interpretations of natural law will eventually focus on the theory of Miguel Reale in a first part (A) on emotional import in a second part (B).

A. Values and transcendental natural law

Reale’s account on natural law theory overcomes the naturalistic fallacy argument as much as he considers that the being remains everlastingly determined by the activity of the mind. However, as it was a decisive one in Gurvitch’s legal philosophy, this standpoint is decisive in Reale’s legal philosophy as well and deserves to be kept in mind along the reflection carried on the following paragraphs. The ontological content is still entitled with a passive character which maintains the mind at the higher rank. It will be shown that the content of Miguel Reale’s transcendental theory of natural law mostly depends on the activity of the mind which, nevertheless, could not express itself out of the everlasting determinable content of the being[31].

The present paper will introduce briefly to Miguel Reale’s philosophy of natural law[32]. In this issue, Reale’s standpoint not only implies the development of value but acknowledges the activity of the mind as well. The prerequisites of his thought will be briefly explained in a first part (1). The transcendental natural law at work in in his thought and the axiological invariant theory will be detailed in a second (2) and third part (3).

1.The prerequisites of Miguel Real’s interpretation of natural law

Miguel Reale’s prerequisite must be located in the context of a critic directed towards the positivism at work in the civil law tradition. Such a tradition as the civil one tends to define legal positivism as the reduction of the rule of law with the statutory form enacted by the competent authority (legislative authority or executive authority). According to this legal positivism, there is a typical confusion between the rule of law and the will of the State’s administration so that the source of law must be found in the expression of the state. Such a positivism, which has occurred in the civil law tradition, might be compared with the austinian analytism, which occured in the common law tradition and reduced the rule of law to the formal expression of the judgment. The source of the rule of law might be found in the mind of the judge in the austinian theory. Their common standpoint is the denial of any existence to natural law theory and the classical assertion that the law does not have any ethical content. Miguel Reale overtakes such a limited legal positivism to develop his theory of transcendental natural law.

The starting point of his critic must be located in the human life and its cultural testimony[33], tools that have always been set aside of the law by any kind of positivism. The human person is the bearer of a nomogenetic dimension[34]. This nomogenetic dimension appears when she distinguishes itself from its environment by an act of self-consciousness and reflection directed towards its value and dignity which at this precise moment gives birth to culture.

2.Emergence of values, activity of the mind and transcendental natural law

When it is said that the mind distinguishes itself from its environment, it is meant that he operates a distinction between his activity and his being. The mind operates a reflection over its being beyond his own being and towards the ontological content of the things. His dignity and value, his ability to engender the law appears in that act of differentiating himself from anything else around him. By means of this process of differentiation, the mind becomes the value toward which all other values must be hierarchically related to[35].

The mind, focusing on the everlasting determinable content of being, engenders an intentional structure of facts which, as objects of the fundamental value, are themselves bearing a value. Thus Reale’s standpoint overcomes the naturalistic fallacy argument. However, the passivity of the being requires the activity of the mind, to ensure its content to natural law.

It is decisive to notice that the Human person is the fundamental value without which the natural law would have no content and toward which all value are hierarchically related to with a view to protect her dignity. In the meantime, the mind is entitled of a transcendental dimension because of his ability to differentiate itself from his being to take it as his first object of reflection. Therefore, Reale’s transcendental natural law conjugates the supremacy of the value of the human person and her decisive ability to differentiation[36].

It may be noticed that Reale does not refer to the process of inclination and the process of cognition. There is no inclination of the mind towards some axiological content. However there is the affirmation of the mind as differentiated, which intentionally begets its fundamental value, the supreme value of the Human person and all subsequent values hierarchically related to the human person, from its relation to the content of his own being. The content of natural law, i.e. the values, is therefore inherent to the human life and depends on the relation of the mind with the being.

3.The axiological invariant and transcendental natural law in a cultural dimension

It has already been said that the law, then the content of natural law is begotten as a cultural good. Values are inherent to the human life, to the cultural world. Values cannot exist outside the scope the mind as the platonician ideas[37]. Reale explicitly argues against this ontological commitment and considers that such an interpretation of values, as the one argued by Mac Scheler or Nicolai Hartman, would create a chimerical world which has nothing to do with the human life. Therefore, it can be argued that Values have no ontological existence as long as the mind does not focus its intentional ability toward the being.

The nomothetic power of the Mind is then at work in the content of Reale’s natural law theory. Moreover, the mind, or the human person which seems difficult to distinguish from the mind in Reale’s thought, considers the human person as the absolute axiological content of the natural law. So that, if the law is begotten by means of the process described above, if the human person is the absolute and stable content of natural law. Moreover all other values are hierarchically related to the absolute one and become stable, as long as they achieve the basic needs explicitly made to protect the human person. The content of the transcendental natural law is therefore hierarchically structured by the supremacy and stability of the value of the human person and the values, the invariability of which relies on their achievement of the fundamental value.

The human person is the condition of the legal system. She is therefore the fundamental and most stable value at the ground of the legal system and the necessary condition of achievement of justice by the law. The basic needs, the goal of which is to protect the human person, are themselves values far less stable than the fundamental one. However the more these basic needs fit the human person requirements, the more stable and invariant. These basic needs reach the status of axiological invariant as long as they tend to achieve their ethical commitment.

Furthermore, given that the law is consubstantial to the cultural world, culture is therefore polarized towards the protection of human goods. Last but not least, if the human person is at the foundation of the existence of the law, any ruling or enactment, which fails in ensuring such a protection, does not have any legal value anymore.

B. The Content of Natural Law and the emotional import

Althought, Miguel Reale’s legal theory have some strong acquaintances with experience, it must be pointed out that his account on the sensitive experience is deprived of any concrete analysis. It has been precisely said above that the mind and the human person can scarcely be distinguished from one another in his legal philosophy. The emotional experience relies on the recovery of the ontological content. However, despites Reale effectively recovered some ontological content into its natural law theory. It is nevertheless depending on the activity of the mind so that the experience only has an intentional an intellectual dimension. Reale’s account only differs from the idealistic interpretation by means of the relation recovered between the mind and the being.

Another account of the content of natural law might process from the recovery of the dynamism of the being, which determine the dynamism of the mind and its orientation towards the ontological content of natural law. Such an account, which overtakes the reduction of the content of natural law to an intentional reality and focuses on the emotional import, without which the content of natural law would be deprived of any concrete existence. Such a recovery of the being (1) would allow the recovery of the process of inclination (2) and the recovery of the substantial content of natural law (3).

1.Towards the Recovery of the ontological content of natural law

Gurvitch and Reale gave a substantial account on the existence of values. However, if the former still maintains the naturalistic fallacy argument at the core of its reflection, the latter achieves to overtake it despites some strong neokantianist reminiscences.

It can be argued that Reale came over Gurvitch’s skepticism in restituting a special ontological content. However such a recovery does not influence the content of the natural law which still remains inherent to human life without having a real ontological substance. Such an ontological content as defined by Reale still depends on the activity of the mind.

The ontological content of the natural law still had to be recovered.

2.Recovery of the inclination ability : insufficiency of the inclination ability

It might be argued that the inclination towards the ontological content of natural law can suffice to restitute such an ontological content. However, the ontological content of natural law cannot be recovered exclusively by means of the recovery of an ability of the mind. This standpoint would maintain the idealistic interpretation and make the content of natural law irrational. The knowledge by inclination has an intuitive dimension which locates it in the exclusive presence of value. Such an intuitive dimension does suffice to unveil the real content of value since it has to face with irrationalism and the denial of its existence.

If the synthetical activity of the mind cannot afford to recover the content of natural, the analytical activity may offer some interesting paths to solve this issue, especially by means of the emotional experience related to the ontological experience of injustice

3.Emotional experience and ontological content of natural law.

The emotion is at least the first sign of the existence of the human person in the legal field, so that the content of natural law relies on the emotional experience[38]. The emotional experience becomes a vehicle of value and the first step of the legal reasoning when the human person faces a situation of injustice. This irreducible experience strikes the human sensitivity and cannot be denied as deprived of any legal consequences. This experience is the minimal experience required to ensure an ontological content to natural law.

During this experience, the human person will dislike the injustice or remain indifferent to the content of the endured action. At this precise moment, by means of his emotional experience, the human person may have the freedom to trigger off a process of reflection towards this emotion, the content of which is different from the emotional sensitivity. Then the mind might be able to identify a lack of value or the presence of a negative value transmitted by means of the emotion. The ability to feel the emotional negative content of an action is by itself the symbol of existing values the existence of which refers to a principle of goodness and gives evidence of the ontological content of natural law.

The emotional experience might therefore contribute to complement the knowledge by inclination by means of the empirical dimension of the emotional experience. Such an empirical dimension would address to the risk of irrationalism which undermines the process of inclination and would help to locate the natural law at each step of the conception of the legal discourse.

Eventually, such an emotional experience would make a strong address to the naturalistic fallacy and would overtake the weakness of the realistic interpretation.

* New York, Docteur en droit (Centre de philosophie du droit, université Montesquieu de Bordeaux, France), avocat.

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Bibliography:

FINNIS (J.), Natural law and Natural rights, (Oxford University Press, 2d. ed. 2011).

GURVITCH (G), Sociology of law, (Routledge & Kegan Paul, 1947).

LISSKA (A.), “Finnis and Veatch on Natural law in Aristotle and Aquinas”, 36 American. Journal of Jurisprudence. 55 1991.

LUTZ (C. S.), The traditions in the ethics of Aladair MacIntyre, relativism, Thomism, and Philosophy, (Lexington Books, 2004).

MAC INTYRE (A.), After Virtue, a study in moral theory, (University of Notre Dame Press, 1981).

MARITAIN (J.) Natural Law, reflections on theory & practice, (ed. and transl. W. Sweet, Saint Augustine’s Press 2001).

OREIRA LIMA (A. C.), “A Brazilian perspective on jurisprudence: Miguel Real’s tridimensional theory of law”, 10 Oregon Review of International Law 77 2008.

REALE (R), Expérience et Culture, fondement d’une théorie générale de l’expérience, (Editions Bière, 1986).

RECASENS-SICHES (L), “Juridical Axiology in ibero-america” 3 Natural Law Forum. 135 1958.

SIMON (Y.-R.), The tradition of natural law, a philosopher’s reflection, (Fordham university press, 1992).

TRIGEAUD (J.-M.), Humanisme de la liberté et philosophie de la justice, Tome 1, (Editions Bière, 1986).

WEINREB (L.J.), Natural law and Justice, (Harvard University Press, 1987).

[1] As a typical form of positivism of natural law, see, John Finnis, Natural law and Natural rights, (Oxford Univ. Press, 2 ed., 2011).

[2] This a classical understanding of the notion of natural law which can be found at the roots of the occidental thought, see Saint Thomas Aquinas, Lloyd. J. Weinreb, Jacques Maritain, Yves Rene Simon

[3] This is another modern and contemporary understanding of the notion of natural law defended by the so-called new natural law theory mainly represented by Finnis.

[4] See Pitirim-Alexandrovitch Sorokin, Social and Cultural Dynamics vol. II & IV, (Harper and Brothers, 1937-1941), and Gyula Klima, “The medieval problem of universals”, Stanford encyclopedia of Philosophy, http://plato.stanford.edu/entries/universals-medieval/.

[5] See Jacques Maritain, Integral humanism (University of Notre Dame Press 1996) and Jean-Marc TRIGEAUD, Humanisme de la liberte et philosophie de la justice, Tome 1, (Editions Biere, 1985).

[6] J. MARITAIN, Natural law, reflections on theory and practice (William SWEET Ed. Saint Augustine’s press, 2001) at 21

[7] Yves-Rene Simon, The tradition of Natural law, a philosopher’s reflections, (Russel Hittinger Ed. Fordham univ. press, 1992) at 135: “Psychoanalysis has given the word “rationalization” a bad sense, but we may use it in this context n its extreme analytical meaning, namely, of grasping rationally that which so far has been grasped indeed but not yet rationally”.

[9] Id. at 21 “being known through inclination, the precepts of natural law are known in an indemonstrable manner. Thus it is that men (except when they make use of the reflective and critical disciplines of philosophy) are unable to give account of and rationally to justify their most fundamental moral beliefs: and this very fact is a token, not of the irrationality and intrinsic invalidity of this beliefs, but on the contrary, of their essential naturality, and therefore of their greater validity, and of their more than human rationality.”

[10] Id. at 34-35. The concept of Sympathy has essentially been developed by Max Scheler in his book Nature and Forms of Sympathy. Max Scheler and Nicolai Hartman, were very influencing over the legal philosophical thought of the second part of the 20^th century, especially over the south American legal philosophy, including Miguel Reale. It must be noted that their metaphysical understanding of Values helped coming over kelsenian positivism specifically rather than developing natural law theory. For a detailed summary of the history of Latin-American legal philosophy, see Luis. Recasens- Siches, 3 Nat. L.F. 135 1958.

[11] This assertion might be mitigated if a careful comparison is made between Simon’s work and Maritain’s one. If the former acknowledge the complementarity between cognition and inclination in the process of interpretation of natural law, the latter really consider the process of inclination as the keystone of the content of natural law; see Yves-Rene Simon, Supra note7 at p 135, compar. with Jacques Maritain, Supra note 6 at 21.

[13] It might be added that such a contradiction does belong to idealism in philosophy in general, and therefore to idealism in legal philosophy as well. Such an account does proceed from the challenging and genuine issue philosophical idealism has had to face with whence it decides to distinguish itself from realism. Idealism claims its ability to know the being before assuming any ontological commitment. That is actually the keystone of the naturalistic fallacy argument. On this point see, J. Moreau, Realisme et idealisme chez Platon, (Presses Universitaires de France, 1952).

[15] Finnis defines as practically reasonable what is “consistent; attentive to all aspects of human opportunity and flourishing, and aware of their limited commensurability; concerned to remedy deficiencies and breakdown, and aware of their roots in the various aspect of human personality and in the economic and other material condition of social interaction”, Id. at 15.

[16] Lloyd J. Weinrebb, Natural law and justice, (Harvard Univ. Press, 1987) at 109

[17] See Hans Kelsen, Pure Theory of Law, (University of California Press, 1978) at 9-10: “there must be in our thinking also an imaginary will whose meaning is the norm which is only presupposed in our thinking – as is the basic norm of a positive legal order.”

[18] See John Finnis, Supra note 1 at 85-86 where Finnis defines each of the principles he has identified and takes care to add that this listing is not exhaustive.

[19] Alaisdair. MacIntyre, After Virtue, a study in moral theory (University of Notre Dame Press, 1981) at chapter 1.

[22] Id at 56: “[….] the “no “ought” conclusion from “is” premises’ principle becomes an inescapable truth for philosophers whose culture possesses only the impoverished moral vocabulary which results from the episodes I have recounted. That it was taken to be a timeless logical truth was a sign of a deep lack of historical consciousness which then informed and even now infects to much of moral philosophy”.

[23] Id. at 111: “if my argument is correct, that failure itself was nothing other than an historical sequel to the rejection of the Aristotelian tradition. And thus the key question does indeed become: can Aristotle’s ethics, or something very like it, after all be vindicated?”

[24] See Christopher. S. Lutz, Tradition in the Ethics of Alaisdair MacIntyre, relativism, Thomism and Philosophy (Lexington Book, 2004) at 57 : “Rationality is not something separate or even separable from traditions through which traditions may be judged; rather, it is something arising from traditions themselves, and bound up with tradition”.

[25] See Georges. Gurvitch, “droit naturel ou droit positif intuitif”, 3 Archive de Philosophie du droit et de sociologie juridique, 1933, at p 55.

[26] See Georges Gurvitch, Sociology of law, (Routledge &Kegan Paul, 1947) p 41.

[30] This is clearly expressed in Georges Gurvitch, Les tendances actuelles de la philosophie allemande (Husserl, Scheler, Lask, Hartmann, Heidegger) (Editions J.Vrin, 1949).

[31] Miguel Reale, Experience et culture, Fondement d’une theorie generale de l’experience, (Editions Biere, 1990) at 48-50.

[32] Reale’s conception of natural law must be related to his tridimensional theory of Law. The goal of the present paper being more limited will focus on his conception of transcendental natural law.

[33] Ortega y Gasset’s influence over Miguel Reale’s legal philosophy should not be underestimated. The overwhelming presence of the “I “and its crucial role in the emergence of culture is a recurrent scheme in Ortega y Gasset’s thought. See J. ORTEGA Y GASSET, Men and People (WW Norton & Company Norton 1957).

[34] Miguel Reale, Experience et culture, fondement d’une theorie generale de l’experience (Editions Biere, 1990) at 30-31.

[35] See Luis Recasens-Siches,“Juridical Axiology in ibero-america” at 168 3 Natural Law Forum. 135 1958.

[36] See, Augusto Cesar MOREIRA LIMA, “A Brazilian perspective on jurisprudence: Miguel Real’s tridimensional theory of law”, at 114 10 Oregon Review of International Law 77 2008.

[37] Luis RECASENS-SICHES,“Juridical Axiology in ibero-america” at 167 3 Natural Law Forum. 135 1958.

[38] The emotional import has been introduced in the legal theory by Leo PETRAZYCKI, see Leo. Petrazycki, Law and moral (H.-W. Babb transl, N.-S. Timasheff, intro, Harvard Univ. Press, 1955). Such a theory was developed by his student Pitirim Sorokin, See Pitirim Alexandrovitch SOROKIN, Social and Cultural Dynamics, 4 vol. (Harper and Brothers, 1937-1941).