PHILOSOPHY OF LAW. - It is the discipline that investigates the concept of law in its logical universality, the idea of justice as the supreme principle and 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 linked to general philosophy, and all its treatments, which succeeded one another over the centuries, were always closely connected with the theoretical presuppositions of the various schools and speculative tendencies.
In historical reality, law presents itself as a complex of norms actually observed and made to be observed by an authority or by a predominant social will, that is, as positive law. This is indeed found among every people and in every age, but it appears variously determined according to circumstances, even though its fundamental motives are constant. Thus observes, for example, St. Thomas: « Principia communia legis naturae non eodem modo applicari possunt omnibus, propter multam varietatem rerum humanarum, et ex hoc provenit 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, which have precisely as their own field of investigation the systems in force among individual peoples. The consideration of law in universal, however, manifestly exceeds the competence of these sciences.
According to empirical and positivist schools, the concept of law should be derived from the very examination of the facts and juridical phenomena, according to a merely inductive method (historical and comparative). To this it has been rightly objected that such an examination presupposes or implies precisely 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 means in truth to apply the notion of this genus, which must already be implicit in our mind. The definition of the concept of law cannot therefore be accomplished by a purely empirical route, but requires the use of a rational method, with respect to which the collection of historical and positive data offers only a confirmation, but not the basis of the inquiry.
The analysis of the logical elements of law, begun in some manner by classical philosophy, and continued intermittently in subsequent ages, had notable development in modern times, especially from Thomasius onward. Thus were brought into clear light, through many discussions, the characteristics of bilaterality, imperativeness and coercibility, as well as the different aspects of law (objective and subjective, etc.); thence also its distinction from morality, notwithstanding their common foundation. On this subject some disagreements are indeed still lively, dependent in part on the different meaning attributed to the same words. It does not seem, however, that the essentially ethical (or deontological) nature of law can be called into doubt, insofar as it expresses not a truth of fact, but a criterion and a norm of action, which subsist and hold above fact and physical reality.
Also with respect to this subject, it becomes necessary to consider what is truly the greatest problem of the philosophy of law, namely the foundation and the first reason of law, in the order of nature and of the human spirit.
Already in Greek thought the various attempts at solving this problem are outlined, especially in the antithesis between the essentially negative doctrines of the Sophists and the Skeptics on the one hand, and the Socratic, Platonic, Aristotelian and Stoic ones on the other. While for the former the just does not exist in nature, but is identified with force, for the latter justice is an idea that draws its absolute value from the universal order. Above positive laws, therefore, there is - according to this conception - a natural law, which unlike those does not depend on any human arbitrariness or power, and has the character of immutability. It can be said that, especially from this classical era, the history of the philosophy of law almost coincides with that of natural law (v.).
The new and sublime doctrine announced by Christianity did not mean the abandonment of the fruits of Greek and Roman thought in this matter: these were rather strengthened and perfected through it, with the moral and juridical elevation of the human personality, declared to be a participant (albeit imperfectly) in the very « 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 charity and the brotherhood of all men in God, exercised 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 Lactantius, of St. Ambrose and of St. Augustine; but to St. Thomas is owed the most complete, profound and systematic treatment of the problems of the philosophy of law, according to the same principles. Admirable is, among other things, the acumen with which the Angelic Doctor knew how to fuse 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 allows mortal man to discern the immortal truths that transcend him.
While the supremacy of natural law over positive law was thus newly asserted, with the consequent condemnation of all unjust laws (a condemnation openly declared by St. Augustine, De lib. arb., I, 5, and reaffirmed with subtle distinctions by St. Thomas), a vast field of inquiry was opening up to the critical thought of philosophers and jurists, especially when, in the 14th century and the following ones, that is, toward the end of the Middle Ages and at the beginning of the modern age, grave political changes made the questions more urgent and the contrasts over the validity of laws and the legitimacy of governments more lively. Not only was the problem of the relations between ecclesiastical and civil power widely discussed, in various senses (among others, by Giles of Rome, James of Viterbo, Dante Alighieri, Marsilius of Padua, Augustinus Triumphus, William of Occam, Nicholas of Cusa, Richard Hooker, etc.), but the foundation of political regimes in general was investigated, almost always resorting to the hypothesis of an original social contract. This hypothesis assumes quite different meanings (v. CONTRACTUALISM), having been employed equally to demonstrate both the legitimacy of absolute governments and the inviolability of the natural rights of the individual before the State. The formula of the supposed contract was, in substance, a dialectical expedient, adopted in order to attempt a rational construction of the juridical and actual order.
If, on the one hand, the great Thomistic tradition was continued with new and acute investigations into the essence of justice and of laws, especially through the work of the Spaniards Dominic de Soto, Luis de Molina, Giovanni Mariana, Francisco Suárez, and others; the school that in a stricter sense was called natural-law, and that developed especially in the 17th and 18th centuries, moved from rationalistic premises, claiming to make abstraction from dogmas, and referring rather to classical theories (especially Aristotelian, Stoic and Ciceronian ones). Numerous and sometimes important were the products of this pre-critical rationalism, which however, because of its methodological defects, was to be superseded and corrected in the following age. It indeed agitated high problems, also giving contributions to their possible solutions; but not rarely it confused truths of fact with truths of reason, presenting sub specie aeternitatis theses dictated by particular political motives or derived from historical narratives often largely inaccurate.
The works of this school — for example, those of Althusius, Grotius, Hobbes, Pufendorf, Locke, Thomasius, Rousseau, to cite only a few of the most representative authors — therefore almost always had a practical and polemical purpose; and they were in reality more or less closely connected with the reforms and the political upheavals of that age, whether by promoting or in some way illustrating its programs, or by theorizing the oppositions and reactions against them.
Despite its not insignificant errors and its own internal contradictions, the natural-law school played a considerable part in the theoretical founding of the modern State, especially as regards the affirmation of individual rights of liberty and their constitutional guarantees.
In the same period, philosophical inquiry into law found different but no less important expressions through the work of other thinkers who, free from any political preoccupation, investigated the ideal essence of law, its relations with ethics and with theology, and the degrees and modes of its manifestations. Thus, for example, Leibniz, and, with even more original views, Vico, who attempted a synthesis of the ideal element (the true) and the positive element (the certain) of law, unifying the history and the philosophy of humanity in a grand design.
Kant's critique led to a methodological revision of the preceding natural-law doctrine, whose fundamental principle it nonetheless retained, namely the inseparability of law from human nature and its value as an absolute ethical exigency. The school of rational law, which begins precisely with Kant, had greater developments with Fichte, who was followed by not a few other authors. Different was the speculative attitude of Schelling and Hegel, who opposed to Fichte's subjective idealism, derived from the Kantian critique, an objective idealism, for which law is a moment in the becoming of spirit. The identity of the real and the rational, effected by Hegel, led to an a priori justification of history, and thence also to a sort of worship of the accomplished fact. This form of historicism, which implied 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 of the absolute from the relative, and the subordination of the lex humana to the lex aeterna), thus came practically to converge with other kinds of historicism, such as, for example, the historical school of jurists, and opened the way also to historical materialism and economic determinism.
Meanwhile there arose, not without certain affinities with these tendencies, positivism and evolutionism, represented principally by Comte and Spencer. Although the latter author, drawn to this perhaps by his upright conscience more than by the logic of his system, accepted the idea of an absolute ethics and of natural law, the general meaning of all the doctrines just mentioned was the prevalence accorded, also as regards law, to historical and positive inquiry as compared with rational and properly philosophical inquiry. And since those doctrines acquired great credit and diffusion during the 19th century (after its first decades), it must be recognized that this period, apart from some luminous exceptions, such as, for example, the work of Rosmini, was rather one of decadence than of progress for the philosophy of law, if this discipline is understood in the highest and most rigorous sense, as investigation of the absolute idea of justice. On the other hand, studies of an empirical and inductive character gained new momentum, 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 last years of the 19th century, and then in the present one, a critical revision of the theses of legal positivism and of the other kindred schools was undertaken — through the work of Stammler, Petrone and others; whence their radical shortcomings were brought to light, especially from the standpoint of the theory of knowledge. In this revision, the Kantian critique was also put to use: but it was improperly that people spoke of a return to Kant, since in reality the most recent doctrines, while keeping in mind the results of that critique, did not stop at them, but proceeded further, reconnecting also, on many points, with the preceding philosophical tradition. In general, and apart from the particularities of the various systems, it may be said that modern philosophy of law has intended to reaffirm, with new analyses and new arguments, the logical universality, the rational foundation and the eternal truth of law; that is to say, the ethical principles and values which, already intuited by Plato, received their highest and most luminous expressions from Christianity, and could never be invalidated by the successive philosophical schools; many of which, on the contrary, offered them, in various ways, illustrations and confirmations.
Even the study of positive legal institutions, systematically extended to all the peoples of the earth (according to the program announced by Leibniz: « Ex his aliisque omnibus undecumque collectis, Deo dante, conficimus aliquando theatrum legale, et in omnibus materiam omnium gentium, locorum, temporum placitis ratiociniis disponemus »), has by now made it possible to recognize the progressive and albeit slow realization of those demands of justice which had already appeared to the minds of the greatest philosophers a priori as founded and implicit in human nature itself. In this connection, the words of Vico 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 ischiatite 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 spiegarsi la mente umana sopra la sua vera natura, si sono in ispiegando in massime dimostrate di giustizia ».
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Giorgio Del Vecchio