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Published online by Cambridge University Press: 05 August 2009
The attack on natural right in the name of history takes in most cases the following form: natural right claims to be a right that is discernible by human reason and is universally acknowledged; but history (including anthropology) teaches us that no such right exists; instead of the supposed uniformity we find an indefinite variety of notions of right or justice. Or, in other words, there cannot be natural right if there are no immutable principles of justice, but history shows us that all principles of justice are mutable. One cannot understand the meaning of the attack on natural right in the name of history, before one has realized the utter irrelevance of this argument. In the first place, “consent of all mankind” is by no means a necessary condition of the existence of natural right. Some of the greatest natural right teachers have argued that, precisely if natural right is rational, its discovery presupposes the cultivation of reason, and therefore natural right will not be known universally: one ought not even to expect any real knowledge of natural right among savages. In other words by proving diat there is no principle of justice diat has not been denied somewhere or at some time, one has not yet proven that any given denial was justified or reasonable. Furthermore, it has always been known that different notions of justice obtain at different times and in different nations. It is absurd to claim diat the discovery of a still greater number of such notions by modern students has in any way affected the fundamental issue.
* This paper is taken from lectures on Natural Right and History which were delivered at the University of Chicago in October, 1949 under the auspices of the Charles R. Walgreen Foundation, and which will be published by the University of Chicago Press under the same title.
1 Consider Plato, , Republic, 456bl2-c2, 452a7–8 and c6–dl,Google ScholarLaches, 184dl–185a3; Hobbes, , De Cive, II 1;Google ScholarLocke, , Of Civil Government, Book II § 12Google Scholar in conjunction with An Essay on the Human Understanding Book I, ch. 3.Google ScholarRousseau, Compare, Discours sur I'origina de I'inégalité,Google Scholar preface; Montesquieu, , De I'esprit des lois I 1–2;Google Scholar also Marsilius, , Defensor Pads, II 12 sect. 8.Google Scholar
2 Aristotle, , Eth. Nic., 1134b24–27.Google Scholar
3 The legal positivism of the nineteenth and twentieth centuries cannot be simply identified with either conventionalism or historicism. It seems, however, that it derives its strength ultimately from the generally accepted historicist premise. See particularly Bergbohm, Karl, Jurisprudenz und Rechtsphilosophie, I (Leipzig, 1892), 409 ff. Berg-bohm's strict argument against the possibility of natural right (as distinguished from the argument that is merely meant to show the disastrous consequences of natural right for the positive legal order) is based on “the undeniable truth that nothing eternal and absolute exists except die One Whom man cannot comprehend, but only divine in a spirit of faith” (416 n.), that is, on the assumption “that the standards with reference to which we pass judgment on the historical, positive law … are themselves absolutely die progeny of their time and are always historical and relative” (450 n.).Google Scholar
4 Plato, , Minos, 314bl0–315b2.Google Scholar
5 “… (les imperfections (des États), s'ils en ont, comme la seule diversité, qui est entre eux suffit pour assurer que plusieurs en ont⃜” Descartes, Discours de la methode, Seconde Partie.
6 As regards the tension between the concern with the history of the human race and the concern with life after death, see Kant's, “Idea for a universal history with cosmopolitan intent,” propos. 9 (The Philosophy of Kant, ed. by Friedrich, C. J., The Modern Library, p. 130.)Google Scholar Consider also the thesis of Herder, whose influence on the historical thought of the nineteenth century is well known, that “the five acts are in this life.” (See Mendelssohn, M., Gesammelte Schriften, Jubiläums-Ausgabe, III, 1, pp. XXX–XXXII.)Google Scholar
7 Dictionnaire Philosophique, ed. by Benda, J., I, 19.Google Scholar
8 See Lessing's letter to Mendelssohn of January 9, 1771.
9 For the understanding of this choice, one has to consider its connection with Nietzsche's sympathy with “Callicles” on the one hand, and his preferring the “tragic life” to the theoretical life on the other. See Plato, , Gorgias 481d and 502 ff.,Google Scholar and Laws, 658d2–5. Compare, Nietzsche'sVom Nutzen und Nachteil der Historie für das Leben (Insel-Bücherei, ed. p. 73). This passage reveals clearly the fact that Nietzsche adopted what one may call the fundamental premise of the historical school.Google Scholar
10 The distinction between “condition” and “source” corresponds to the difference between Aristotle's “history” of philosophy in the first book of the Metaphysics and his-toricist history.
