Live with your century, but do not
be its creature.
Labour for your contemporaries,
but do for them what they need, and
not what they praise.
On 22 September 2011, Pope Benedict XVI held a widely noted speech on political ethics to the German “Bundestag”. He placed natural law in the center of his speech and called for truthfulness in political action. Benedict XVI said that the ethical core of natural law with respect to politics was the following:
“Politics must be a striving for justice, and hence it has to establish the fundamental preconditions for peace. […] To serve right and to fight against the dominion of wrong is and remains the fundamental task of the politician. […] Yet when it comes to the decisions of a democratic politician, the question of what now corresponds to the law of truth, what is actually right and may be enacted as law, is less obvious. […] The question of how to recognize what is truly right and thus to serve justice when framing laws has never been simple “.1
Thus, the former head of the Catholic Church refered to Aristotle’ claim which has been at the center of natural law thinking since the Greeks 2,500 years ago: politics must rest on ethics. Power alone cannot create justice. Positive law must be measured along pre-state ethical standards, derived from the knowledge about human nature and shaped in a way that it becomes justice. Law, Aristotle says, will neither become justice by mere controversy (discourse ethics) nor by force or ideology.
At that time 2,500 years ago the Greeks had entered a new historical phase: Natural law recognized that lasting peace could not be secured solely by power, but that political power must be committed to securing a just and secure peace.
This originated in the fact that right and wrong in the state depended on how humans perceive and evaluate reality. Right and just action are directly related to truthfulness. If one perceives things as they are, one can live up to them and do the right thing and that way become happy.
Since Aristotle the basic idea of natural law is that man can then live happily as long as he leads his life in accordance with the laws of the external nature as well as his inner social nature (zoon politicon). Leading life, however, means nothing but that man makes use of his reason and that he understands – guided by his humane feeling – what is right and what is wrong. Political action by this standard comes close to justice.
It is part of the ineffable conditions of our times that the intellectual elite advising politics is attempting to crush this brazen relationship between politics and ethics. Jürgen Habermas arrogated the claim that modernity had begun properly only when in the late 20th century the American John Rawles had tried to strictly separate politics and ethics again.
It is true, however, that the German resistance to Hitler had found its pre-state standard in the ethics of natural law which had enabled them to offer resistance to the dictatorship with its inhuman power politics. The Nazi state abused people as means to an end, precisely for the reason that it despised the European tradition of natural law ethics, was obvious to everyone. After the Second World War it was obvious to everybody that this was profoundly unjust.
It therefore calls for an explanation whom the intellectual elite was serving by their attempt to once more separate politics and ethics at the end of the twentieth century and thus prepare the ground for a return to pure power politics. No wonder that in a world that is dominated by pure power politics, one dismisses Natural Law as “Catholic special dogma”; for according to natural law, any imperial power politics is unjust and misanthropic.
“The history of Europe and America is […] a history of injustice and violence, but also a history of overcoming the latter by moral insight and political power”,2 writes the well-known constitutional law expert Martin Kriele in his book “Die Demokratische Weltrevolution”. Natural Law was and is at the center of overcoming injustice and violence.
With the so-called Westphalian Peace in 1648 that ended the Thirty Years’ War, the Westphalian Order emerged with the Peace Treaty of Munster and Osnabruck, thus overcoming the bloody wars of conquest and religious wars of the early modern period. It was mainly due to Natural Law by Hugo Grotius, that the foundations of International Law for the peace treaty were created. The respective state was given the monopoly of power over its territory. Its borders should not be violated by imperial lust for power. Intervention should be prohibited.
The religious wars and wars of conquest of the early modern period were one of those many historical phases when politics, building solely on the will to power and imposing terrible misery onto the people, provoked resistance. Such periods in time have always marked the flowering of Natural Law. The Westphalian Order was established towards the end of those 200 years between the 16th and 17th century, when Christian culture had created modern natural law and brought it to its peak.
In 1492, the bloody conquest of America by Spain and Portugal began accompanied by the blessings of the Catholic Church – as the “Church in power” its transformation to Catholic Social Teaching and the Cooperative Movement was yet to come. The conquerors wrecked havoc in America. In a shocking report the monk Bartolome de Las Casas describes the terrible pillage, enslavement and extermination of the Indians, which he had witnessed.3 It was the School of Salamanca that developed the Natural Law doctrines out of the philosophy of late scholasticism by addressing this injustice. The conquerors justified the genocide of the Indians by saying that the Indians were not baptized and therefore no legal persons, with whom one could negotiate contracts, and that therefore they could not have any right to govern themselves. A personal friend of Las Casas, Francisco Vitoria (1492/93–1546), who had been informed by him of the inhumanities, was commissioned by Emperor Charles V to develop guidelines for the evangelization of the Indians. Vitoria confronted the conquistadors subsequently with the conviction “that people are basically equal and free in nature.”4 The right to life and liberty, the dignity as a human being was therefore no longer limited to the membership of a denomination or race but was granted to every human being simply by the fact that he was a member of the human species. This marked the beginning of a shift within the Catholic Church, away from “Church in power” towards the words of its founder, “There is neither Jew nor Greek, there is neither slave nor free, there is no male and female, for you are all one in Christ Jesus.”5
Vitoria’s student Suarez ( 1548–1617) developed this approach into a theory of Natural Law. And for some years the Indians were given liberties in one of their regions – a first approach to a sovereign region of self-government based on Natural Law.
At the court of the Spanish Habsburg monarchy under Charles V a fierce public debate had previously taken place between Natural Law representatives and the representatives of pure power politics. Reinhold Schneider, a poet and native of my hometown Baden-Baden, has immortalized this struggling for natural law in a wonderful historical novel entitled “Las Casas vor Karl V”, in 1941. It earned him a persecution by the SS, because he designed the conflict between natural law and power politics in such a lifelike manner that the reader knew he drew the parallel to Hitler, but also to any other dictatorship.
Hence, from natural indignation against injustice towards the Indians arose the first modern approach to Natural Law, as a “liberation of man by law” (Kriele). This Spanish doctrine of natural law was the starting point for its further development. In the wake of the Eighty Years’ War, in which the Spaniards tried to enforce Catholicism on Protestant Netherlands again, Hugo Grotius (1583–1645) developed the doctrine of Natural Law which built on the work of the School of Salamanca and continued it. And in response to the misery of the Thirty Years’ War the doctrine of Natural Law was further developed by Samuel Pufendorf (1632–1694), for whom the Palatine Prince Elector Karl Ludwig established the world’s first chair of Natural Law in Heidelberg in 1661. A handy summary of Pufendorf’s Natural Law “De officio hominis et civis” of 1667 was used at schools in many European countries for decades as an introduction to ethics, and at the universities it became a “must read” for any law student as an introduction to the subject.
A pigskin-bound edition of Samuel Pufendorf’s large two-volume Natural Law system “De jure naturae et gentium” of 1672 can be found today in the Central Library in Zurich with the handwritten note “from the books of Gottfried Keller”.
From Late Scholasticism and the School of Salamanca to Grotius and Pufendorf we can trace the emergence and flowering time of modern natural law. It pushed open the door to the development of the enlightened model of the sovereign republic; based on a monopoly of power within one territory (Westphalian Order) and resting on the three pillars of natural law: separation of power, natural law, human rights and democracy. Aristotle had already defined them in his Politeia.
This state model, the principles of which were derived from natural law, might be described as the “European state model”. It is the means to secure co-existence within a free and just order. To a certain extent, its basic principles are adaption to what a human being needs to be able to live as a person. Friedrich Schiller, professor of philosophy and history, put it down in a wonderful sentence:
“The state itself is never the purpose, it is important only as the condition under which the purpose of mankind may be fulfilled, and this purpose of mankind is none other than the development of all the powers of people, i.e., progress. If the constitution of a state hinders the progress of the mind, it is contemptible and harmful, however well thought-out it may otherwise be, and, however, accomplished a work of its kind. Its longevity then serves the more to reproach it than to celebrate its glory – it is then merely a prolonged evil; the longer it exists, the more harmful it is. In general, we can establish a rule for judging political institutions, that they are only good and laudable, to the extent, that they bring all forces inherent in persons to flourish, to the extent, that they promote the progress of culture, or at least not hinder it.”6
This state model as well as the associated Westphalian Order of the state system are children of Europe. It is a model, and as such something one has always to strive for. The politically most mature form is the Swiss Federal State of 1848, which allows the greatest possible development of freedom in a direct democratic legal system.
“The political Enlightenment was natural law doctrine. It was based on the nature of man as a human being, not as a Catholic or Protestant, as a Christian or heathen, as European or Asian, as a free man or a slave, etc. Its question was about the conditions which would enable people to cooperate peacefully and friendly. Its answer was: by assuming a legal state, which means according to the Kantian formula: by recognizing each other – people and states – as having equal rights and by limiting their freedom according to universal laws to such an extent that the freedom of everyone can exist together with the freedom of all. By doing so, they submit their animal-biological nature to their rational nature and hence overcome the principle of the right of the stronger, faster, smarter, more brutal, more unscrupulous. Thus, at the same time, they establish the freedom in which every person and every people can decide for themselves, in order to realize the best possibilities inherent in them to collaborate fraternally and to keep peace with each other. Question and answer have a purely intra-worldly rational character and are not bound to any theological presuppositions. In them, the natural law minimum is expressed which embraces all religions, cultures, traditions and which is essential in order to establish a universal peace. Only the supplementary question – Why should we want the conditions of a peaceful and friendly coexistence? – refers to a morality which in turn, has distant religious roots, but has not a religious expression by itself; one that was alive even in pre-Christian religions and is and has already been recognized in the pre-Christian philosophies, such as Stoicism. This morality can be assumed and acknowledged by atheists and has often met with even more emphatic support by them throughout the history of the Enlightenment than it did from the churches. Grotius said, natural law would even then apply if there was no God or if he did not care about human issues.”7,8
Those who, in the face of the above-outlined history, speak of natural law as a “Catholic special doctrine” do not know what they are talking about. After all: the fact that the non-believer is not released of morality just because he does not believe, and because he therefore presumes that there is no God and that “anything goes” – this is exactly where Natural Law puts a stop. It has thus laid a foundation for a humane and secular ethics.
It has given birth to a model of coexistence, which has assembled all the rival religious and secular groups under one roof, and under this roof the freedom of each group is protected and the political conflict is guided into peaceful channels.
My friend, the Japanese Natural Law Professor Hideshi Yamada, once replied to my question, what the difference was between Natural Law thought in Europe and Asia: “You have placed more emphasis on reason, we have placed more emphasis on feeling.”
So, Martin Kriele’s question is raised again: Why should we want the conditions of a peaceful and friendly coexistence? Because the human intellect is transformed to reason only if it is connected to humane thoughts and feelings. “It is the direction, the goal towards which we develop, namely more and more humaneness; that we develop our skills as human beings,” Hideshi Yamada said. And already about 2,300 years BC, the Chinese Mong Dsi (about 370 – about 290 BC; Latin name: Mencius), a man from Hideshi Yamada’s cultural background and himself a scholar of the great Kongzi (Latin name: Confucius), gave a moving response to this question about the “always-wanting-to-be-more-of-a-fellow-human being”:
“All people possess a moral sense within them that cannot bear the suffering of others. [...] Why do I say that all people possess within them a moral sense that cannot bear the suffering of others? Well, imagine now a person who all of a sudden sees a small child on the verge of tumbling into a well. Any such person would experience a sudden sense of fright and dismay. This feeling would not be one that they summoned up in order to establish good relations with the child’s parents. They would not purposefully feel this way in order to win the praise of their friends and neighbours. Nor would they feel this way because the screams of the child would be unpleasant. Now by imagining this situation we can see that one who lacked a sense of dismay in such a case could simply not be a person. And I could further show that anyone who lacked the moral sense of shame could not be a person; anyone who lacked a moral sense of deference could not be a person; anyone who lacked a moral sense of right and wrong could not be a person. Now the sense of dismay on another’s behalf is the sprout of ren (love) planted within us, the sense of shame is the sprout of righteousness (yi), the sense of deference is the sprout of ritual li, and the sense of right and wrong is the sprout of wisdom. Everyone possesses these four moral senses just as they possess their four limbs. For one to possess such moral senses and yet to claim that he cannot call them forth is to rob oneself; and for a person to claim that his ruler is incapable of such moral feelings is to rob his ruler. As we possess these four senses within us, if only we realize that we need to extend and fulfil them then the force of these senses will burst through us like a wildfire first catching or a spring first bursting forth through the ground. If a person can bring these impulses to fulfilment, they will be adequate to bring all the four quarters under his protection. But if a person fails to develop these senses, he will fail to protect even his own parents.”9
Another cultural area, the same social human nature, the same question of the fair contributions to the world and the same answer: compassion, shame [conscience, MN] and modesty, as well “right and wrong [...] planted within us […]. Everyone possesses these four moral senses just as they possess their four limbs.” Catholic missionaries have brought Mencius’ lyrics and those of his teacher Confucius to Europe. And many thinkers of the 18th century, who contributed valuable substance to the development of natural law and a democratic constitutional state, have drawn on these resources. Last but not least also Albert Schweitzer did. We know by Jeanne Hersch’s research that such natural law approaches can be found in all cultures.
Personalist psychology and anthropology, developmental psychology and pedagogy have accumulated a rich fund of knowledge and experience. They can give sound scientific answers and directions to the question “Why should we strive for the conditions of a peaceful and friendly coexistence?”; they give answers and directions that have been tested empirically, without reducing the people to an object. This empirically tested knowledge about human social nature, which has been derived from personalist human sciences, meets with the personalist philosophical anthropology and with the Catholic social doctrine of the Revelation at the same point: The human person, who is both an individual and a communal being at the same time, must be the starting point and the objective of all political action.
I would like to close with a remark. In the French Constitution of 1793 we find the remarkable sentence, “The social guarantee consists of the effort of all to assure to each the enjoyment and preservation of his rights; this guarantee is based upon national sovereignty.”10 Social guarantee of human rights means that natural and human rights must be lived politically. Otherwise, they are dead letters. In a global world, in which the sovereignty of nation states is being dissolved, human rights lose exactly this power: to be the protection of the individual against the all-powerful state. They have been and are abused – key word “humanitarian intervention” – by nihilistic pure power politics as a weapon against the people. War and human rights, however, are like fire and water.
And so we have arrived at the topic of our meeting*, which we want to work on in a joint effort in the following three days. Thank you for your attention. •
1 https://w2.vatican.va/content/benedict-xvi/en/speeches/2011/september/documents/hf_ben-xvi_spe_20110922_reichstag-berlin.html (as of 3 Sept 2015)
2 Kriele, Martin (1980): Befreiung und politische Aufklärung, Freiburg/Basel/Vienna, p. 7 (Translated)
3 cf. Hanke, L. (1949), The Spanish struggle for injustice in the conquest of America. New York
4 Kriele, Martin (1988) Die Demokratische Weltrevolution, Munich/Zurich, p. 23
5 Galatians 3/28. Cf. also Colossians 3/11, 1 Corinthians 12/11–13 http://biblehub.com/galatians/3-28.htm (as of 3 Sept 2015)
6 Schiller, Friedrich: The legislation of Lycurgus and Solon, http://www.schillerinstitute.org/transl/lycurgus_solon.html (as of 3 Sept 2015)
7 Kriele, Martin (1997): Die demokratische Weltrevolution und andere Beiträge. Berlin, p. 2 (Translated)
8 Grotius, Hugo (1950): De iure belli ac pacis. Drei Bücher vom Recht des Krieges und des Friedens. Paris 1625. Tübingen, p. 33
9 Mencius, Readings 3 The Doctrine of the Goodness of Human Nature. www.indiana.edu/~p374/Mengzi3.pdf
10 http://www.columbia.edu/acis/ets/CCREAD/frerev.htm (as of 3 Sept 2015)
* Lecture held at the September Meetings “Mut zur Ethik” from 4 to 6 September 2015, dedicated to the topic “Freedom, Sovereignty and Human Dignity – A Safeguard against Despotism and War”.
©Moritz Nestor, firstname.lastname@example.org
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