by Wolfgang Waldstein[1]
The Roman jurists, quite matter-of-factly, recognized natural law to be an inherent normative order for mankind, recognizable through reason and, thus, applied it in concrete decisions. With this work, the Roman jurists developed a concrete knowledge regarding the practice of natural law, thereby making it a historic reality. Over time, the deviations from natural law, which existed in the old Roman law, were perceived more and more as being unjust. Through countless individual decisions, these were corrected by the Roman jurists, in order to be able to arrive at just decisions. This work by the Roman jurists was conducted over a time period of nearly 500 years, from the 2nd century BC to the 3rd century AD. As was mentioned in the introduction, the results of this work were published in the year 533 AD by Emperor Justinian as one of his codes of law, in a work known as the Digest. The rediscovery of this work in the Middle Ages and the study of it at the original academy of the artes in Bologna, resulted in this school’s becoming the very first university in Europe. This university then influenced the entire further development of legal culture in Europe. Upon this foundation, the “natural law codes ”, the General Prussian state law of 1794 (AL), the Napoleonic Code of 1804, and the 1811 Civil Code of Austria (ABGB) were created. Based on this, the ABGB, even today, can say in § 16: “Every person has innate rights, already intelligible through reason.”
After the modern codifications came into effect, the question as to whether or not Roman law would continue to be a subject matter in studies of law, nevertheless, arose nearly everywhere. A letter written by Emperor Franz I. of Austria to the Count of Ugarte on September 26th, 1807 is particularly noteworthy. In this letter he requests the Austrian chancellery’s report[2], which addresses the question as to whether or not, the studies of law “would maintain the studies on Roman private law [once the ABGB has taken effect] and when the latter, if need be, is scheduled to end, should it not have ended already?” The report drafted by the chancellor, the Count of Ugarte, states, amongst other things:
For so many centuries, the Roman civil law has been the general law of all civilized, European nations and has been the only bond by which these same nations maintained common terms, not only in regard to private law, but also to international and constitutional law. It was through this law alone which was used in nearly all provinces of this continent, that jurisprudence arrived at that level of development, and perfection, to which the common and individual welfare of Europeans is so indebted for an administration of justice founded on natural equity.
Roman jurisprudence is—with the exception of a few parts— [an expression] of common reason, of the moral feeling of humankind, the judicial wisdom attained through centuries of experience. Finally, it is the richest collection of fundamental principles of jurisprudence applied to individual cases, where one can seek precedents for the most complex legal questions, for which, indeed, the knowledge of that which was determined in similar cases, will always be the safest guideline.
The entire report, which was made available to me as a photocopy through the courtesy of the national archives in Vienna, is absolutely worth reading.[3]
There are several examples of how Roman law is of practical significance for concrete legal issues of today. I would like to highlight just one, which has an overall significance: § 7 of the Austrian Civil Code (ABGB) regulates that in the event that a legal case cannot be solved based on either the wording of the law, or an analogy, a judge must adjudicate according to the natural legal principles. It is, however, a controversial question in literature and commentaries, as to what these natural legal principles might be. In 1877, Pfaff-Hofmann, in their commentary on § 7 of the Austrian Civil Code (ABGB), believed these natural legal principles to be in the Roman law. They rightly, referred to a conclusion made by Rotteck, which elucidates the awareness of the relation between the Roman law and natural law:
Roman legislation is, in its regnant character, (and irrespective of the institutions, which emerged from particular political, religious and moral conditions) merely a positive promulgation and, where necessary, a specification of the law of reason.
They also cite Zachariä, who said: “For actually, the Roman law, for the most part, is a description of natural law with its consequences”.[4]
Of course it is clear to me that one would have to say much in addition to these statements in order to do this complex historical reality any justice. Nevertheless, these statements are, to a great extent, accurate. This can be even elucidated through examples from the judgements of the Austrian Supreme Court of Justice (OGH). The previously[5] cited principle: “it is in accordance with the natural justice that no one should enrich himself at the expense of another”,[6] in connection with the other principle that no one, through their own guilefulness, should obtain a legal advantage,[7] was applied in 1974 by the OGH in a remarkable adjudication. It concerned the following case. An insurance company had guaranteed a person, who had been seriously injured through negligent conduct on behalf of the defendant, compensation for any further damage resulting from the accident that might occur as the result of operations that would later be necessary. In view of this declaration, the claimant, on account of the exclusion of the statute of limitations, saw no reason to request a declaratory judgment for the existence of a claim. This claim could end only with the cost-incurred conviction of the insurance company. Once the statute of limitations period had expired, the insurance company objected to claims made then, on grounds that, according to the statute of limitations, the date for filing had already passed. This was, rightfully, seen as fraudulent conduct on the part of the insurance company. In its verdict on October 7th, 1974, the OGH assessed: “The debtor, who, contra bonos mores, prevented the creditor from obviating the statute of limitations, may not appeal to the statute of limitations”.[8]
In the first head note, the OGH says:
The law recognizes moral principles (“general principles of justice”: Par. 1 KPz-ABGB), that are so universally recognized that applying them requires no special statutory provision; they breach even the written norm.[9]
In this case, the natural legal principle breached even the extremely stringent norm for the statute of limitations of § 1502 ABGB, behind which the fraudulent debtor believed he could hide. These rulings were affirmed in two more verdicts, from 1975.[10] The OGH even speaks of an “already established OGH jurisdiction from the recent past”. According to that, “the cunning debtor, who prevented the creditor from obviating the statute of limitations through a claim, may not, in accordance with the natural legal principle, which states that no one, through their own deceitfulness, may obtain a legal advantage, appeal to the statute of limitations”.[11] Unfortunately, the politically motivated amendments to the divorce law led to the OGH no longer being able to continue this jurisdiction uninterrupted. For according to the new divorce law, the sole culpable spouse can file a petition for divorce and, thus, through his own dishonesty (inprobitas[12]), attain a right of action.
Paul Koschaker, in his book “Europa und das römische Recht” (“Europe and the Roman Law”), spoke of a European natural law, “which is not gained speculatively through reason, but rather, strictly historically, through the comparison of those systems of private law that have contributed to the legal structure of Europe and, moreover, to the entire civilized world. At the forefront of this is the Roman law, which establishes a connection between these legal systems; a natural law which collects the legal experiences of all civilized peoples that helped build Europe”.[13]Koschaker, in this context, speaks of a “relative” natural law, compared to an “absolute”, of which he writes: “An absolute natural law, however, does not come into question”.
I cannot, however, discuss this problem any further at this point. I would only like to point out that Alfred Verdross made an important contribution towards the clarification of the relationship between absolute and unvarying natural law, on the one hand, and on the other hand, the respective situational and the relative concretizations of this natural law. In his book, “Statisches und dynamisches Naturrecht”[14] (“Static and Dynamic Natural Law”), he differentiates between a primary, unchangeable and a secondary changeable natural law. The secondary natural law is the respective application of the primary natural law within the alternating situations. He then, amongst other things, says: “Therefore, only the concretizations of the primary natural law are changeable”.
In these changeable “secondary norms of natural law”, however, “the unchangeable natural law is applied”.[15] If this primary, unchangeable and, therefore, the absolute natural law were nonexistent, then its norms could not be applied in a changeable, secondary natural law. Then it would be simply pointless to even speak of a natural law. Without knowing about the explicit differentiation made by Verdross, Koschaker, when speaking of relative natural law, is most likely only referring to the changeable and, thus, the relative secondary natural law, which exists in the concretizations of the primary, contingent upon the historical circumstances. This secondary natural law in itself can be researched in a strictly historical sense. It is precisely the “practice of natural law”, which has developed throughout history, yet which presupposes the existence and knowability of the primary, unchangeable natural law.
In order for us to also understand the significance of natural law in the Roman law, Verdross’ clear differentiation is of great significance. It can help one better understand the process of practical application. The insights of ancient philosophy into natural law in general, and the particular practice of natural law historically manifested by the Roman jurists, are of great significance today because today even moral theology, in a late-reception of the positivist concept of science and reality, feels the need to dismiss natural law in order to afford humans their desired “autonomy”. The fact that this is an aberration, which does not lead to more humanness, should already have been evident a long time ago. The pluralistic, democratic society is also at the point of depriving itself of the basis of its existence by assuming that it can disregard those norms predetermined for mankind. Joachim Detjen, in particular, illustrated this in an extensive study on the relationship between pluralism and natural law.[16]
“Neo-Kantianism”, the “positivist concept of science”[17], and the “concept of reality” that follow from them have, more or less, infected all of modern legal theory. In particular Karl Popper’s and Hans Albert’s “critical rationalism” intensified these tendencies.[18] Under these premises, natural law was, as mentioned earlier,[19] described by Leinweber as being a “mirage of our dreams” and he asserts that “we never possessed a knowledge, but rather only ‘the illusion of a knowledge of natural law’”.[20] I cannot argue that the author of these statements did not possess a knowledge of natural law. I must, however, unfortunately, certify that he could not have had any knowledge of the actual legal development which has taken place since Antiquity. Already Johannes Messner, in his review of the first edition of Leinweber’s book, asserted: “The fact that there cannot be a scientific natural law is logically indisputable, if Leinweber’s concept of science is correct.” However, he adds: “Today, the concept of science is at the center of scientific discussion.” And furthermore: “Indeed, a concept of science is a purely arbitrary one, which merely limits it to the natural sciences”.[21]
Based on his concept of science, Kelsen formulated his critique of natural law even more harshly by stating that “the various teachings on natural law offer just as many and likewise various answers as does relativistic positivism”. He, furthermore, writes:
However, each of these teachings on natural law gives the individual the illusion that the norm of justice, which it chooses, stems from God, nature, or reason, and is, therefore, completely valid and excludes the possibility of the validity of another norm of justice which would contradict it; and for this illusion, many will make any sacrificium intellectus.[22]
That is, they sacrifice their intellect. This statement implies that the entire development of western philosophy – from Plato through Aristotle and the Stoics initially to Cicero and throughout the entire Roman jurisprudence, then to Augustine, through Saint Thomas Aquinas, and the Spanish School of Natural Law to the Enlightenment teaching on natural law with the codifications of natural law in the 18th and 19th centuries and to the preceding century’s efforts in favor of human rights – would have been an uninterrupted chain of sacrifices of the intellect. The entire development of European law would, thus, also be based on such a development. I can only explain Kelsen’s statement by supposing that he does not know what he is talking about. Cicero, and likewise Ulpian, however, refer to precisely this philosophy, which traces back to Socrates, Plato, and Aristotle, as the only true philosophy.[23]
The historic reality of natural law has never been about choosing a “norm of justice” and theoretically building a natural law upon it. Kelsen simply did not know this reality. Even the so-called “natural law of the Enlightenment”, which took the approach of wanting to construct it out of the autonomous reason, in reality, largely drew on the insights of Roman law. Especially the “natural law codes”[24] demonstrate this very clearly. If Kelsen says that “the various teachings on natural law offer just as many and likewise various answers as does relativistic positivism”, then this, by no means, applies to the real development of law since Antiquity. This development, in reality, demonstrates an astonishing continuity over the past two millennia. Kelsen’s assessment does, in fact, apply only to theories, which were developed about the natural law, but without reference to its reality. These theories associated with the claims of being solely scientific have, however, since Antiquity, been proved to be contradictory and insupportable. Hence, in the present day, they have also been subjected to critical review. These reviews, which certainly took place from the perspective of various fundamental standpoints, inevitably led to the exact same result at which Aristotle had arrived when reviewing early philosophical teachings, and which “viewed merely the senses as that which exists”. He concludes: “Hence, they speak according to the illusion, but not according to the truth”.[25] With regard to relativism, Aristotle assesses:
…at one point, if everything, which one means, and everything, which seems sensual, is true, everything must be true and, at the same time, be false. For many have contrary points of view and believe that those who are not of their opinion are in error. Thus it necessarily follows that the same is and is not.[26]
As he continues to illustrate, “all such claims tend to have the frequently emphasized consequence that they end up canceling each other out”.[27] Hans Kelsen’s former assistant, Eric Voegelin, in his analysis of the development of the positivist concept of science, therefore, rightly concluded:
Such considerations would radically upset the positivist image of the development of an early religious or theological phase of humanity to the height of the positivist science. Not only would the line of development, at least for modern history, flow from a higher to a lower level of rationality, but this decline of ratio would, furthermore, have to be understood as a result of a mental regression. With that, an interpretation of western history, which had developed within centuries, would be revolutionized. And a revolution of such magnitude would meet with an opposition of ‘progressive’ elements, which would suddenly find themselves caught in the position of retrogressive irrationalists.[28]
Voegelin then explains why he “formulates [these assessments] in the mode of the conjunctive”. Subsequently he writes:
A great number of preconditions had to be fulfilled, before the conjunctive considerations could be transferred into the form of an indicative action. The understanding of ontology, as well as the sheer banausic technique of philosophizing had to be acquired anew, and what’s more, philosophical anthropology had to be re-established as a science”.[29]
Hence, there is no alternative to the attempt, grounded in the true philosophy, to search for the truth through methods appropriate for the respective subject matter.
Ever since Antiquity, natural law, at all times, was recognized and applied through the natural light of reason. It was also understood that a humane order can only subsist if those rights, predefined for mankind, are respected. Cicero already clarified this in his previously quoted statement[30], that “Nature’s law itself … protects and conserves human interests”. Therefore, the knowledge of natural law is not a question of any more or less reliable philosophical theories, or even of a positivistic legal theory. Rather, natural law is a recognizable reality in the entire development of European legal culture.
[1] Wolfgang Waldstein was professor of Roman law at the University of Salzburg from 1962-1992. From 1996-1998 he was professor for ius commune at the Pontifical Lateran University in Rome. The son of Count Ludwig von Waldstein, he is the father of theologian Michael Waldstein and grandfather of Edmund Waldstein, O.Cist., editor of The Josias. The following text is an excerpt from his book Written in the Heart: Natural Law as the Foundation of Human Society, translated by Rebecca Parker and Michael Waldstein. The work was originally published in German as Ins Herz Geschrieben: Das Naturrecht als Fundament einer menschlichen Gesellschaft (Augsburg: Sankt Ulrich Verlag, 2010), and was cited by Pope Benedict XVI in his speech to the German parliament. The Excerpt is from chapter 4.
[2] Arch. D. k. k. St. H. C. Z. 105
[3] Cf. A. Steinwenter, Der Einfluß des römischen Rechts auf die Kodifikation des bürgerlichen Rechtes in Österreich (The Influence of Roman Law on the Codification of the Civil Law in Austria), in: Studi in memoria di P. Koschaker I (1954) 414f. Regarding the relation between Roman law and natural law see, furthermore, P. Koschaker, Europa und das römische Recht (Europe and the Roman Law), 41966, 252.
[4] L. Pfaff/F. Hofmann, Commentary on the öst. allg. urger. Gesezbuch I (1877) 195 annot. 171; there, further references.
[5] II.
[6] Pompon. D. 12, 6, 14.
[7] Cf. Ulp. D. 47, 2, 12, 1.
[8] ammlung Zivilsachen (=SZ) 52 (1974) nr. 104, p. 460.
[9] Cf. previous annot.
[10] SZ 48 (1975) nos. 67 and 79.
[11] SZ 48, nr. 79, p. 428. Cf., in general, Th. Mayer-Maly, Die natürlichen Rechtsgrundsätze als Teil des geltenden österreichischen Rechts (The Natural Legal Principles as Part of the Current Austrian Law), in: Das Naturrechtsdenken heute und morgen, Gedächtnisschrift für R. Marcic, ed. D. Mayer-Maly and P. M. Simons, Berlin 1983, 853-864.
[12] Cf. Ulp. D. 47, 2, 12, 1.
[13] Koschaker, Europa 346.
[14] Freiburg 1971.
[15] Natural Law 116.
[16] Joachim Detjen, Neopluralismus und Naturrecht. Zur politischen Philosophie der Pluralismustheorie (Neo-Pluralism and Natural Law. The Political Philosophy of the Pluralism Theory) (Politik- und Kommunikationswissenschaftliche Veröffentlichungen der Görres-Gesellschaft Bd. 1), Paderborn inter alia 1988, esp. p. 639.
[17] Cf. Karl Larenz, Methodenlehre der Rechtswissenschaft (Methodology of Law), 61991, 117.
[18] Cf. die glänzende Kritik des kritischen Rationalismus (The Shining Critique of Critical Rationalism) by W. Denke, Recht und Staat, Heft 434, Tübingen 1974.
[19] See ch. 1, annot 7.
[20] So according to Leinweber, Gibt es ein Naturrecht? (Is There a Natural Law?) (p. 161, annot. 7), 280 and 284f.
[21] Öst. Z. öff. Recht 18 (1968) 132 f. Messner’s review is the only reference point in regard to the mention of the name Messner in the name index. The monumental work is, otherwise, not mentioned anywhere.
[22] Reine Rechtslehre (Pure Theory of Law), Wien 2 (reprint) 1967, 442. see Waldstein, Gesetz und Gerechtigkeit (Law and Justice), in: Wahrheit, Wert und Sein, Festgabe für Dietrich v. Hildebrand zum 80. Geburtstag, ed. B. Schwarz, Habbel, Regensburg 1970, 187-189.
[23] Cf. Cic. Tusc. 4, 6; Ulp. Dig. 1, 1, 1, 1. See Waldstein, Römische Rechtswissenschaft und wahre Philosophie (Roman Law and True Philosophy), Index 22 (1994) 31-45), see 33-37 in regard to cited passages.
[24] [I.e. the Prussian Code (1792), the Napoleonic Code (1804), and the Austrian Code (1811)].
[25] Aristotle, metaph. 4, 5; 1010a 1-5.
[26] Aristotle, metaph. 4, 5; 1009a 7-12.
[27] Aristotle, metaph. 4, 8; 1012b 13 et seqq.
[28] Die neue Wissenschaft der Politik (The New Science of Politics), German edition 1959, Sonderausgabe der Stofterbibliothek 1977, 48f. The quotes are in reference to this edition.
[29] Neue Wissenschaft 49.
[30] Cic. off. 3, 31, cf. ch. 3, annot. 75.