III. ANALYSIS OF THE ACTUAL CONCEPT
OF NATURAL LAW AND ITS FUNCTIONS
Natural law appears as a model of positive law (when
the meaning given to this expression is law imposed
by authority, whether it be legislative or judicial), but
it is nothing but a model. Natural law appears equally
as a limitation of positive law, in the sense that it seeks
to guarantee a certain irreducible content of the law,
thereby limiting the liberty of the one who imposes
the law whether he be a legislator or a judge. But it
is no more than a limitation.
Natural law is really nothing but a model or a limit
because it is realized in positive law, as actual judicial
experience proves. Therefore, there is no necessary
conflict between ideal law which ought to be and
positive law which is. The opposition or antinomy, on
the other hand, generally tends to diminish as positive
law takes in a sufficient share of natural law even as
it always takes in a minimum amount of moral value.
But the amount of natural law taken in by positive
law does not affect its quality. Natural law and positive
law are neither opposed to each other nor are they
placed side by side as the elements of a mosaic; they
are complementary to each other and they are inter-
twined. Hence we have to separate out the functions
of natural law in order to analyze it with circum-
spection.
To our understanding, natural law has three juridical
functions: a supplementary function; a function of
control or regulation; a motivating or creative function.
The supplementary function comes into play when it
is proper to close up the gaps in positive law. The
legislator cannot foresee every case of conflict and
consequently cannot formulate rules for all conflicts.
In the same way the judge is limited in his mission
by the cases submitted to him. Judicial rule is thus
necessarily limited even when it has the unconditional
value of obligatory precedent. Certainly many cases
are solved, either by reference to the law, or by refer-
ence to precedent, but there are many hypotheses
where there is an absence both of legislative norms
and of precedents. The juridical order of law (judge-
made law) then has a lacuna or deficiency.
Now, it is a principle that the judge must judge (see,
for example, article 4 of the French civil code) and
cannot abscond from his duty under the pretext of the
law's silence; the non liquet (“the case is not clear”)
is in fact exceptional.
In such a case the judge must himself formulate a
rule or a norm which would undoubtedly be decisive
but which under these circumstances would perforce
not be arbitrary. Accordingly, the judge's tendency is
to refer to principles, and among these, when the
personality of a man is involved in the conflict, the
reference in particular is to the principles of natural
law on account of the human values it comprehends.
Natural law is thus called upon to meet the deficiencies
of judicial ordinances and to supplement positive law;
thereby the rule of natural law becomes the rule of
positive law.
Under these circumstances natural law's function of
control or regulation is nonetheless assured. Indeed,
experience proves that the jurist brings judgments to
bear on the rule of law, conspicuously in countries of
written law. Undoubtedly, positivists challenge this
prerogative: “the judge judges according to the law,
he does not judge the law,” they write freely. But the
contrary is verifiable: the fact is that the jurist com-
pares the positive rule with the model of natural law,
and limits or departs from the rule of positive law when
it seems too obviously to contradict this model. Judges
do so today, and they always have done so.
This regulative function of natural law is obviously
much more disputed than its supplementary role. The
dogma of the separation of powers is really put to the
test since the judicial power eventually understands it
is censuring the work of the legislative power, and is
doing so not by virtue of a fundamental law of the
State charter (the Constitution) but by virtue of un-
written principles, essential principles of justice which
would be imposed over any legislation for the sake of
justice. Such a function is obviously inconceivable in
Kelsen's system or in any system of so-called pure law.
Yet experimental verification leads to the sure conclu-
sion that at least some judges do not hesitate to test
the internal content or intrinsic basis of the rule of
law, and to limit or put aside the rule if its content
is too obviously contrary to the so-called principles of
natural law.
A variant of this attitude is seen in an intermediate
position which consists in putting aside the rule set
by authority insofar as the legislative power has not
clearly expressed its will to infringe, in a limited do-
main, upon a principle generally known to be one of
natural law. In short, the motivating or creative role
of natural law no longer seems disputable. The rule
of natural law serves the legislator as a support for
creating a legal norm and to give the law in this case
more of a declarative value than a created one. The
rule is then supposed to have existed always, if not
in its form at least in its basis, which falls back on
the idea of legal retroactivity, the declarative norm
being only the recognition of a preexisting legal prin-
ciple. We need only think of the judgments relating
to war crimes brought under the positive law of differ-
ent countries in the aftermath of the second world war.
But beside its juridical functions, natural law also
has a metajuridical or political function which is at
least as important; again, as De Page has so subtly
remarked, it is less in this case the notion of natural
law than the idea of natural right which is involved.
A society's law is not a static but a dynamic affair.
Called upon to govern social relations, it is not in-
different to the transformation of these relations, and
must therefore follow this evolution more often than
it leads it. This observation has been made for thou-
sands of years and the principle of law arising from
the fact was already recognized in the “rule of the
old law” (Regulae juris antique) in the Digest of Justin-
ian. This necessary adjustment can be realized thanks
to the adaptation of the existing system of law through
the methods of judicial interpretation, which is in fact
both explicative and creative. However, the possi-
bilities of active interpretation are limited by technical
reasons. First of all, interpretation has to operate under
certain conditions. Although it is possible, by question-
ing the clarity of a juridical rule, to attribute a new
meaning to it, still the jurist being essentially con-
servative, will not admit departing too far from the
old rule. Abrupt mutations do occur, but they are
exceptional and pointed out as such by the doctrine.
Furthermore, the process of interpretation is relatively
slow in its action and in its effects. A sudden change
in jurisprudence has to be prepared. Coming out of
the lower courts it has to be progressively confirmed
by the higher courts. Moreover, a sufficient number
of cases must be presented for the new theory to be
elaborated, made exactly clear, and confirmed. Now
it is a matter of chance as to which kinds of cases that
will allow this new construction. These kinds of cases
for this very reason extend over a relatively long period
of time.
Finally, interpretation only solves a fraction of the
problems that it sets out to resolve, bearing only on
those limited aspects of a case that are necessary for
its litigation. The result is that though the juridical
interpretation plays a central role in the evolution of
the law by acting within the system, it will not always
answer adequately to the requirements of a society in
rapid evolution. In this case the whole system is con-
tested and its replacement by a new system (judged
to be more just, more adequate, and better adapted
to the new needs) is urged by a minority that does
not have the power to change the system. They must
then, for lack of power, convince the others rather than
impose on them; whence, a dialectical phenomenon,
the obligation to justify and to find a basis for the new
system. The passage from the old to the new system
is effective on the rhetorical, that is, argumentative
level. Now what better argument is there than to
maintain that the new system is more in conformity
with the nature of things than the old one, that is to
say, with the model that is provided by natural law?
But it appears immediately that on this hypothesis it
is not natural law so much as the idea of natural law
which is called upon to validate and establish the new
system.
This reversal, demanded in the name of an order
judged to be higher, plays its part no longer on the
level of jurisprudence but on the political plane. It is
the accomplishment of a group of protesters who,
starting with a small number, will try to add to its
ranks an increasingly important mass of citizens and
urge them to demand no longer the evolution of the
existing system but its disqualification and its replace-
ment eventually by force. The idea of natural law is
then called upon to play a metajuridical or political
role by validating a new system intended to be a sub-
stitute for the old one.
We have, in summary, remarked that the notion of
natural right and the idea of natural law play a complex
role, that the functions of natural law or of the idea
of natural right are many whether we remain inside
the legal system or go outside of it, that the concept
of natural right is dynamic and not static, and that
its very imprecise nature permits one to have recourse
to it in many hypotheses. Must we add that because
of this very imprecision, the multiplicity of its possible
meanings, and the diversity of its functions, agreement
about natural law and rights is very hard to obtain
in any controversy? That is why there is such an ex-
traordinary proliferation of irreconcilable opinions on
the subject.
