The Contemporary Period. The tendency to return
to the principles of natural law appeared at the end
of the nineteenth century and soon grew rapidly.
Beudant published Individual Law and the State
(1891); Saleilles, in 1902, spoke of “the renaissance of
natural law,” an expression which Charmont picked
up for the title of a volume in which he put together
a series of lectures he had given during the academic
year 1908-09 at Montpellier, translated soon after into
English and published by A. W. Spencer (Boston, 1916).
The second volume of Geny's four-volume work on
Science and Technique in Positive Law (1921-30) bears
the epigraph “irreducible natural law.” It was a new
declaration of a law above the legislator, and opposed
the voluntarism of legal positivism. For some it was
a matter of moral truth that would be imposed on the
legislator, but for others it was really a matter of a
distinctive legal order with the capacity to limit and
even to replace the standards of positive law contrary
to its imperatives.
Man would remain at the center of this renewed
conception of natural law, the idea revolving entirely
around the eminent dignity of the human personality
basic to a series of obligations: respect for life, liberty,
honor, etc. The needs of social life also entail some
obligations: respect for contractual agreements, for
example. The relations of the State and citizen are
subject to these essential rules. Rational ethical duties
are combined with social needs. These theories of
natural law are not, however, reducible to a unified
system.
The Neo-Thomist school challenges the absolute
separation that Kant and more recently Kelsen have
established between the “is” and the “ought.” Man has
an ultimate end directed towards the good by virtue
of man's divine essence, whence the principles of jus-
tice are to be found at the center of natural law. The
rational development of these principles should lead
to a check on positive law, and to adapt the latter
to social requirements by respecting the moral re-
quirements. On this theme there exist many variations
(Leclercq, Coste-Floret, Massis, Maritain, and others).
Michel Villey occupies a marginal place in this move-
ment because he is a resolute Thomist and Aristotelian.
Thanks to his profound analysis, however, he renewed
the usual meaning given to the message of Thomas
Aquinas and Aristotle.
Law is confounded with the quest of justice. Natural
law implies a specific method: that of controversy; it
links up with the studies, in the domain of casuistry,
of the Belgian National Center of Logical Research.
The Protestant school, or better the Protestant vision
of natural law, tries, following Brunner, to construct
a reformed theory of society. Natural law is based
neither on a cosmic nature nor on the abstract individ-
ual, but on man as the concrete bearer of the moral
values of freedom which are prior to positive law, and
on man as a social creature whose vocation is fulfilled
within the social matrix. This idea is not far from
Thomism. The reaction here is accountable as one due
to the amoral character of strictly positive law. The
restricted cognizance, in rules of law, of norms satisfy-
ing only formal requirements clashes too violently with
that dynamic store of moral values carried by social
man within himself, and leads to too many inadmissible
ethical consequences. This reaction can be seen his-
torically in the fields of both the philosophy of law
and of political philosophy (cf. the Declaration of the
Rights of Man, 1789). It has a non-negligible place in
what Wiederkehr calls the “philosophy of the man-
uals,” that is, the philosophy which is not expounded
by those specializing in philosophy of law, but by
writers expounding a branch of positive law. It is found
in various countries in diverse forms (Georges Scelle,
Hauriou, Roubier, Battifol, Del Vecchio, d'Entrèves,
de Jouvenel, and others) and even in Germany, where
Helmut Coïng in 1947 wrote on “The Supreme Princi-
ple of Law, an Inquiry into a new foundation for
Natural Law” (Die obersten Grundsätze des Rechts, Ein
Versuch zur Neubegrundung des Naturrechts). To
Coïng, what is permanent in law are the basic situa-
tions assumed by him to be repeated constantly in
history because of the constant condition of man and
his nature. Among the spiritual needs of man is the
sense of right which renders to each his due (suum
cuique) and to the moral values required by human
coexistence, values which have their source in human
nature. Finally, natural law has preserved and does
preserve a non-negligible place in judicial decisions, a
fact which leads us to formulate a theory of positive
natural law, that is to say, a law which emerges from
the living judicial scene.
Seen from this angle, a certain number of general
principles of law, after being approximated and
brought together, benefit from a common consensus.
On the other hand, natural law continues, as in every
epoch, to experience serious resistance on the part of
positivists whether they are state socialists or sociolo-
gists (Ripert, De Page, Kelsen, Bobbio, Eisemann, and
others).
The validity of legal norms cannot be based on two
eventually irreconcilable foundations; to recognize the
primacy of natural law would mean destroying that
of positive law. Without positive law, however, natural
law would be inexact. Finally, the adversaries of natu-
ral law, analyzing the idea of natural law, challenge
especially its conformity with human nature.
These objections do not appear to be decisive; the
first sin by excess of logic, since the hierarchy estab-
lished between natural law and positive law suffices
to eliminate this objection; since the second objection
is justified only to a lesser degree, it would be more
exact to say that natural law allows the extraction of
general rather than inexact rules; the third objection
is acceptable only to the degree that this law would
necessarily be innate, which is only one way to look
at it. Moreover, historical study asserts that the debate
is far from ended.
