The Eighteenth and Nineteenth Centuries. The
preceding historical exposition has enabled us to dis-
cern at least four forms of natural law: classical, Stoic,
voluntarist, and rational natural law, justifying what
we said about the necessity to qualify the expression.
The school of natural law met with such great success
that it affected the whole political philosophy of the
eighteenth century. Without minimizing the influence
of Grotius and Pufendorf, it was John Locke who
marked most profoundly the later development of this
philosophy in the domain of natural rights and thereby
of individualism, as the result of the publication in
1689/1690 of his
Two Treatises of Government. The
individual is at the center of this work which counter-
balanced Hobbes's work. Men are by nature in a state
of perfect freedom and complete equality. However,
freedom is not license. The state of nature possesses
a law which is reason, and reason teaches that no one
should injure another's life, health, freedom, or prop-
erty. Every human being, furthermore, should have the
right to protect his prerogatives drawn from natural
law, chiefly to remain in the free state of nature and
not to be subjected to the political power of anyone
else.
If men do unite in a society, it is by their consent,
and they then form a community. But this community
can live effectively only when a method of arriving
at decisions is adopted, namely, the law of majority
vote. He who enters a society remits power conse-
quently and necessarily to the majority of the members.
The theory of the social contract is in that way clearly
expressed. Now, through this contract the individual
does not give up all his natural rights, but only the
part necessary for the good of the whole society. He
preserves his individual rights, and political authority
is limited in its action by the unconditional respect
for these rights. There is thus a sharing of things. Power
which does not aim at the common good or invokes
the domain reserved for individual rights is tyrannical
and may be resisted by force. Locke's work had an
immediate and enormous success, not only in England,
but also in France and in Germany.
The ideas of Montesquieu, brought up in the school
of natural law, are no less important for the evolution
of political society. His The Spirit of the Laws is built
on natural law in a unified framework: “the laws are
the necessary relations derived from the nature of
things.” Justice is prior to every contingent aspect: “To
say that there is nothing just or unjust except what
the laws order or forbid, is to say that before a circle
is drawn the radii are not equal.” Natural law then
forms the framework and boundary of the powers of
the civil laws, as shown by the title of his famous
chapter “On Civil Laws which are contrary to Natural
Law.”
Montesquieu's essential contribution is not, however,
in the sphere of natural law, which he does not question
or improve upon, but rather in the matter of natural
rights: defense of freedom, essential prerogatives which
flow from freedom, guarantees against arbitrariness on
the part of governing rulers.
In the sphere of ideas, the role of Jean Jacques
Rousseau and of his version of the social contract is
just as important as that of Locke and Montesquieu
although Rousseau's predilection for natural law is
more questionable. He surely admits the postulates of
natural law: men's native freedom and equality. But
the state of nature cannot be maintained among them.
Hence, the necessity of shaping a form of association
which defends and protects with all the common force
the person and property of each; in this association
each one, by uniting with all, obeys only himself, how-
ever, and remains as free as before. This form was
elaborated by starting with a genuine fiction “the gen-
eral will.”
Through the “social contract,” which entails “the
complete alienation or surrender of each member with
all his rights to the community,” the moral collectivity
called the State is established. The aim of the State
is to carry out the general will which cannot err since
no one is unjust to himself. The social contract gives
the State an absolute power; the general will expressed
by the majority necessarily implies the assent of the
less enlightened minority. Of course, citizens will pre-
serve a “natural right” as individual persons, but the
sovereign alone will judge the importance of this right.
This absolutism of the law contained in germ the
absolutism of the State.
All these theories were soon to find a field of appli-
cation. The accession to independence by the United
States had brought with it published declarations which
were marked by national and individualistic natural
law ideas guaranteeing citizens against abuses by the
sovereign power. The Constitution of the State of
Virginia (1776) is prefaced by such a declaration, and
the same is true of the constitutions of the states of
Pennsylvania, Maryland, South Carolina, Vermont,
Massachusetts, and New Hampshire which were
adopted between September 1776 and October 1783.
The French Declaration of the Rights of Man was
inspired by these examples. Recall that this Declaration
proclaimed that the aim of every political association
is “the preservation of the natural and imprescriptible
rights of man,” liberty, property, security, and the right
of resistance to oppression.
Natural law and natural rights triumphed, but the
very extension of the victory of rational natural law
was going to bring about its defeat. The French codes
presented as works of reason—which, moreover, they
were not—appeared as models of legislation which
were supposed to be applicable to other States; this
extrapolation brought in its wake some severe reac-
tions, despite the philosophical support given to
Rousseau's idea by Kant, for example. Kant, in fact,
defended the classical distinction between natural law
and positive law by basing natural law on the rules
that reason recognizes a priori. He thereby made a
rational place for freedom in his otherwise mechanisti-
cally oriented and formal system. Post-Kantians, like
Fichte, put a heavy emphasis on this
a priori idea which
gave the idea of law a supremely abstract character
(Stammler).
The reaction came to be organized in Germany as
well as in England and France. The German historical
school was under the leadership of von Savigny, who
published his famous work On the Call of our Time
for Legislation and Science of Law (1814). It contested
the idea that law could be rational, law being on the
contrary the expression of the soul of a people whose
law is latent in its manners and expressed in its customs.
This is, of course, an historical conception, but it is
also a romantic one, and Hegel, who presented himself
as an adversary of Savigny, shared with him an opposi-
tion to natural law. Hegel, on the other hand, identified
the rational with the real. Therefore, the real allows
one to know the rational; the development of history
progressively reveals the mind. Besides, man matures
not through living as an individual, but does so collec-
tively. The State is presented as the synthetic center
of the general interest and good, being the reality of
the moral Idea.
Hegelianism, revived by Kohler at the end of the
nineteenth century, was to find some disciples also in
the Third Reich's official builders of its ideology.
In England, the reaction against natural law began
with Bentham's Principles of Morals and Legislation
(1789). Bentham denounced the theory of natural law
as arbitrary and based his doctrine on social utility.
John Stuart Mill and Herbert Spencer enlarged this
idea, which had an equivalent expression in Germany
in the teleological view of law held by Jhering.
The French reactionary movement was directed not
so much against natural law as against natural rights.
It was led by Joseph de Maistre and Louis de Bonald
who took sharp exception to the abstract nature of man
in their attack on natural law.
The utopian socialism of Saint-Simon and Fourier,
on the other hand, placed the whole emphasis on
society rather than on the individual and gave no value
to law itself. Proudhon is more subtle. Auguste Comte,
finally, set natural law aside for the sake of social
physics.
Marx and Engels cannot be confined to any national
setting because of the widespread import of their mes-
sage. The Communist Manifesto, issued in 1847, took
a firm stand against the idea of objective immutable
or eternal truths. Law results from the economy which
is the substructure (Unterbau) whereas law is the
superstructure (Ueberbau). Law is the will of the ruling
class erected in statutes whose aim is determined by
the material conditions of existence of this class. If one
questions this by asking, “Are there no eternal truths
like liberty, justice, etc. which are true of the whole
society?” the sharp answer is, “Communism abolishes
eternal truths; instead of transforming religion and
morals, it abolishes them.” Positivism appeared, then,
to triumph and natural law seemed destined for an
irrecoverable decline.
But again, a reaction took place. A number of
philosophers and jurists were indeed frightened by the
possible consequences of strictly positivistic theories
of law which ran the risk of validating the worst
iniquities. Thus a new effort soon emerged in juris-
prudence on the side of natural law.
