PHILOSOPHY OF LAW. — This is the discipline that investigates the concept of law in its logical universality, the idea of justice as the principle and supreme criterion of its value, and the most general and profound causes of its historical manifestations.
Since law is essentially a rule for human action, the philosophy of law is properly a part of practical philosophy, or ethics in the broad sense. It is therefore connected with general philosophy, and all the treatments of it that succeeded one another over the centuries were always closely linked to the theoretical presuppositions of the various schools and speculative tendencies.
In historical reality, law presents itself as a complex of norms effectively observed and enforced by an authority or by a predominant social will—in other words, as positive law. This is indeed found among every people and in every age, but it is variously determined according to circumstances, even though its fundamental motives remain constant. Thus, for example, St. Thomas observes: « Principia commenta legia naturae non eodem modo applicari possunt omnibus, propter multam varietatem rerum humanarum, et ex hoc proventi diversitas legis positivae apud diversos » (Summ. Theol., 1ª-2ª, q. 95, a. 2, ad 3; cf. ibid., q. 97). Insofar as it is positive, law is the object of particular sciences, whose proper field of inquiry is precisely the systems in force among individual peoples. The consideration of law in universal terms, however, manifestly exceeds the competence of these sciences.
According to the empirical and positivist schools, the concept of law should be derived from the examination itself of legal facts or phenomena, according to a merely inductive method (historical and comparative). It has rightly been objected that such an examination presupposes or precisely implies the notion in question, namely, the criterion for distinguishing the juridical from the non-juridical. To recognize that a certain fact or phenomenon belongs to the logical genus of law in fact means applying the notion of this genus, which must already be implicit in our minds. The definition of the concept of law cannot therefore be accomplished by purely empirical means, but requires the use of a rational method; in relation to this method, the collection of historical and positive data provides only a means of verification, not the basis of the inquiry.
The analysis of the logical elements of law, begun in some fashion by classical philosophy and pursued intermittently in subsequent ages, underwent considerable development in modern times, especially from Thomasius onward. Through numerous discussions, the characteristics of bilateralism, imperativity, and coercibility were thus clarified, as were the various aspects of law (objective and subjective, etc.); subsequently, its distinction from morality was also established, despite their common foundation. On this subject, some lively disagreements have indeed arisen, depending in part on the different meanings attributed to the same terms. It does not seem, however, that the essentially ethical (or deontological) nature of law can be doubted, insofar as it expresses not a factual truth, but a criterion and a norm of action, which exist and possess validity above fact and physical reality.
In connection with this subject as well, it is necessary to consider what is truly the central problem of the philosophy of law, namely, the foundation and first reason of law within the order of nature and the human spirit.
Already in Greek thought, the various attempts to solve this problem began to take shape, especially in the antithesis between, on the one hand, the essentially negative doctrines of the sophists and the skeptics, and, on the other, the Socratic, Platonic, Aristotelian, and Stoic doctrines. Whereas for the former justice does not exist in nature, or is identified with force, for the latter justice is an idea that derives its absolute value from the universal order. Above positive laws, therefore, according to this conception, there exists a natural law which, unlike them, does not depend on any human will or power and bears the character of immutability. It may be said that, especially from this classical era onward, the history of the philosophy of law almost law (v.).
The new and sublime doctrine announced by Christianity did not signify the abandonment of the fruits of Greek and Roman thought in this field; on the contrary, through Christianity they were strengthened and perfected, with the moral and juridical elevation of the human person, declared to participate (although imperfectly) in the same « ratio divinae sapientiae » (Summ. Theol., 1ª-2ª, q. 91, a. 3 ad 1; q. 93, a. 2). The fundamental maxims of the Gospel, such as charitas and the fraternity of all human beings in God, exerted a powerful influence on the positive law of the Roman Empire and on civilization in general. The spirit of the new era already shines forth in the works of Lattanzio, St. Ambrose, and St. Augustine; but it is to St. Thomas that we owe the most complete, profound, and systematic treatment of the problems of the philosophy of law, according to these same principles. Among other things, remarkable is the acuity with which the Angelic Doctor succeeded in fusing Aristotelian and Christian doctrines into a single logical organism. Justice indeed has its source in God; but it also has a basis in human nature, namely, in that reason which enables mortal human beings to discern the immortal truths that transcend them.
While the supremacy of natural law over positive law was thus once again asserted, with the consequent condemnation of all unjust laws (a condemnation openly declared by St. Augustine, Delib. arb., I, 5, and reaffirmed with subtle distinctions by St. Thomas), a vast field of inquiry opened up to the critical thought of philosophers and jurists, especially when, in the fourteenth century and the centuries that followed—that is, toward the end of the Middle Ages and at the beginning of the modern age—serious political changes made questions concerning the validity of laws and the legitimacy of governments more urgent and conflicts over them more intense. Not only was the problem of the relations between ecclesiastical and civil authority widely discussed, in various senses (among others, by Egidio Romano, Giacomo da Viterbo, Dante Alighieri, Marsilio da Padova, Agostino Trionfo, Guglielmo d’Occam, Niccolò da Cusa, Riccardo Hooker, etc.), but the foundation of political regimes in general was also investigated, almost always by recourse to the hypothesis of an original social contract. This hypothesis assumed very different meanings (v. CONTRATUALISMO), having been used equally to demonstrate both the legitimacy of absolute governments and the inviolability of the natural rights of the individual vis-à-vis the State. The formula of the supposed contract was, in substance, a dialectical expedient adopted in an attempt to construct rationally the juridical and actual order.
While, on the one hand, the great Thomistic tradition was continued through new and acute investigations into the essence of justice and laws, especially by the Spaniards Domenico de Soto, Luigi de Molina, Giovanni Mariana, Francesco Suárez, and others, the school more strictly known as natural-law theory, which developed particularly in the seventeenth and eighteenth centuries, proceeded from rationalistic premises, claiming to abstract from dogmas and referring instead to classical theories (especially Aristotelian, Stoic, and Ciceronian ones). The products of this pre-critical rationalism were numerous and at times important; yet, owing to its methodological defects, it was destined to be overcome and corrected in the subsequent age. It did indeed raise lofty problems, also contributing to their possible solutions; but it often confused matters of fact with truths of reason, presenting sub specie aeternitatis theses dictated by particular political motives or derived from historical narratives that were frequently, in large part, inaccurate.
The works of this school—for example, those of Althusius, Grotius, Hobbes, Pufendorf, Locke, Thomasius, and Rousseau, to mention only some of its most representative authors—therefore almost always had a practical and polemical purpose; they were in fact more or less closely connected with the reforms and political upheavals of that age, either anticipating or in some way illustrating their programmes, or theorizing the opposition and reactions against them.
Despite its not inconsiderable errors and its own internal conflicts, the natural-law school played a considerable part in the theoretical foundation of the modern State, especially with regard to the affirmation of individual rights of freedom and their constitutional guarantees.
In the same period, philosophical inquiry into law found different, but no less important, expressions in the work of other thinkers who, free from every political preoccupation, investigated the ideal essence of law, its relations with ethics and theology, and the degrees and modes of its manifestations. Thus, for example, Leibniz and, with still more original views, Vico, who attempted a synthesis of the ideal (true) and positive (certain) elements of law, unifying the history and philosophy of humanity in a grandiose design.
Kant’s criticism led to a methodological revision of the preceding natural-law doctrine, while nevertheless retaining its fundamental principle, namely, the inseparability of law from human nature and its value as an absolute ethical requirement. The school of rational law, which begins precisely with Kant, underwent further development with Fichte, followed by not a few other authors. The speculative position of Schelling and Hegel was different: they opposed to Fichte’s subjective idealism, derived from Kantian criticism, an objective idealism according to which law is a moment in the becoming of the spirit. Hegel’s identification of the real and the rational led to an a priori justification of history, and hence also to a kind of adoration of accomplished fact. This form of historicism, which involved the abandonment, at least in part, not only of the postulates of critical philosophy but also of the fundamental doctrines of the philosophia perennis—which had always taught the distinction between the absolute and the relative, and the subordination of the lex humana to the lex aeterna—thus practically came to converge with other kinds of historicism, such as, for example, the historical school of jurists; it also opened the way to historical materialism and economic determinism.
Meanwhile, positivism and evolutionism arose, not without certain affinities with these tendencies, represented chiefly by Comte and Spencer. Although the latter author, perhaps led to this more by his sound conscience than by the logic of his system, accepted the idea of an absolute ethic and of natural law, the general significance of all the doctrines just mentioned was the precedence accorded, also with respect to law, to historical and positive inquiry over rational and properly philosophical inquiry. And since those doctrines gained great credit and diffusion during the nineteenth century, after its first few decades, it must be acknowledged that this period, apart from certain luminous exceptions, such as, for example, the work of Rosmini, was a period of decline rather than of progress for the philosophy of law, if this discipline is understood in the highest and most rigorous sense, as an investigation of the absolute idea of justice. By contrast, empirical and inductive studies received renewed impetus, such as legal ethnology, comparative law, and, in general, research into the genesis and historical development of law in its relations with social phenomenology.
Already in the final years of the nineteenth century, and thereafter in the present one, a critical revision of the theses of legal positivism and of the other related schools was undertaken—by Stammler, Petrone, and others—whereby their radical deficiencies were brought to light, especially from the standpoint of the theory of knowledge. Kantian criticism was also put to use in this revision; but it was improper to speak of a return to Kant, since in reality the more recent doctrines, while bearing the results of that criticism in mind, did not stop with them but proceeded further, also reconnecting at many points with the preceding philosophical tradition. In general, and apart from the particular features of the various systems, it may be said that modern philosophy of law has sought to reaffirm, through new analyses and new arguments, the logical universality, rational foundation, and eternal truth of law; that is, the ethical principles and values which, already intuited by Plato, received their highest and most luminous expressions from Christianity and could never be extinguished by subsequent philosophical schools—many of which, indeed, offered them illustrations and confirmations in various ways.
The study of positive legal institutions, systematically extended to all the peoples of the earth—following the programme announced in advance by Leibniz: « Ex his aliisque omnibus undecumque collectis. Deo dante, conficimus aliquando theatrum legale, et in omnibus materia omnium gentium, locorum, temporum placita razochagibus disponemus »—has by now also made it possible to recognize the progressive, albeit slow, realization of those demands of justice which had already appeared a priori to the greatest philosophers as founded upon and implicit in human nature itself. In this connection, Vico’s words may be recalled: « Siccome in noi sono sepolti alcuni semi eterni di vero che tratto tratto dalla fanciullezza si van coltivando, finché con l'età e con le discipline provengono in ischiaratisme cognizioni di scienze; così nel genere umano per lo peccato furono sepolti i semi eterni del giusto, che tratto tratto dalla fanciullezza del mondo, col più e più spiegarà la mente umana sopra la sua vera natura, si sono in spiegando in massime dimostrate di giustizia ».
BIRL, F. J. Stahl, Die Philosophie des Rechts, 3 voll., 1ª ed., Tubinon 1878 (trad. II. del solo vol. I di P. Torre, Storia della f. del d., Torino 1853); G. Carmagnani, Storia della origine e dei progressi della f. del d., 4 voll., Lucca 1851; R. Hildebrand, Geschichte und System des Rechts- und Staatsphilosophie, I (unico pubbl.), Lipsia 1860; A. Rosmini, F. del d., 2ª ed., Intra 1865; L. Taparelli, Seggio teoretico di diritto naturale appoggiato sul fatto, 5ª ed., Roma 1949; F. Toscano, Corso elementare di f. del d., 3ª ed., Napoli 1869; H. Ahrens, Naturrechts oder Philosophie des Rechts und des Staates, 6ª ed., Vienna 1890-91; trad. II. di A. Marghien, Corso di diritto naturale e di f. del d., 3ª ed., Napoli 1885; A. Trendelenburg, Naturrecht und dem Grunde der Ethik, 2ª ed., Lipsia 1868; trad. II. di N. Medugon, Diritto naturale sulla base dell'etica, Napoli 1873; G. Prisco, Principi di f. del d. nelle basi dell'etica, ivi 1872; A. Lasson, System des Rechtsphilosophie, Berlino 1882; J. Costa-Rosenti, Philosophie morale: un Institutiones Ethicae et Iuris naturae, 2ª ed., Innsbruck 1886; F. Filomusi Guelfi, Lezioni e taggi di f. del d., ed. postuma, Milano 1949; G. Carlo, La vita del diritto nei suoi rapporti: collo vita sociale, 2ª ed., Torino 1890; A. Bolzel, Cuore de philosophie du droit, Parigi 1890; L. Mirsalis, F. del d., I (unico pubbl.), 2ª ed., Napoli 1903; I. Vanni, Lezioni di f. del d., 4ª ed., Bologna 1920; Th. Meyer, Institutiones Iuris naturalis: un Philosophiae morale universis, 2ª ed., Friburgo in Br. 1905; V. Cethrein, Maralphilosophie. Eine wissenschaftliche Darlegung der sittlichen einschliesslich der rechtlichen Ordnung, 2ª ed., ivi 1911; trad. II. di E. Tommasi, Filosofia morale. Sponziana scientifica dell'ordine morale e giuridico, 2ª ed., Firenze 1920; J. Kohler, Lehrbuch der Rechtsphilosophie, 3ª ed., Berlino 1923; R. Stammler, Lehrbuch der Rechtsphilosophie, 3ª ed., ivi 1928; I. Petrone, Il diritto nel mondo dello spirito, Milano 1910; id., F. del d., con l'aggiunta di vari saggi, ed. postuma, ivi 1930; G. Radbruch, Rechtsphilosophie, 3ª ed., Lipsia 1933; G. Del Vecchio, Lezioni di f. del d., 7ª ed., Milano 1920. V. anche contraittualismo: DIRITTO NATURALE: GIUSTIZIA.
Giorgio Del Vecchio