“Academics repeatedly declare the natural law to be dead,” observed former Notre Dame law professor Anton-Hermann Chroust. “But every twenty-five years or so it comes in again by the back door when some crisis shows the failure of utilitarian positivism.”
America seems to be at such a crisis point, with the dominance of “wokeism” and the lack of intellectual confidence of the polity in knowing—among other things—that a boy is a boy, and a girl is a girl. What was once the preserve of the asylum is now given force of law through the various civil rights acts and the myriad of federal, state, and local policies that impose a worldview younger than most of the people it impacts.
Given the effect of this totalitarian impulse on the American scene and, particularly, its dominance on the law and public policy, it behooves us to return to a neglected part of the library and dust off a copy of Heinrich Rommen’s The Natural Law: A Study in Legal and Social History and Philosophy (1936).
Rommen’s brief is both historically comprehensive and philosophically profound. He traces the idea of natural law from the first recorded ruminations of man through the modern triumph of positivism. In a profoundly intellectual analysis that buttresses Chroust’s claim, Rommen demonstrates the reappearance of natural law with a critique of the theories of leading legal scholars.
Of course any theory of law that challenges the will to power of the secular totalitarian state is bound to be unwelcome. Hence Rommen’s escape from Nazi Germany to the United States in 1938 after the book’s initial publication.
One of the book’s most poignant contributions to jurisprudential thought is the observation that law must be rooted in metaphysical convictions. In order to critique the state or the laws of a nation, one must have a higher standard by which those can be measured. This higher standard must terminate in an ultimate being, Rommen argued. Likewise, an epistemology grounded in recognition of this higher being would serve as a corrective to the overactive imaginations of today’s “woke.”
It might be too much to expect consideration of these questions by the contemporary legal community. It might be too uncomfortable for our law students, lawyers, and government officials to realize that there are limits in imposing one’s will. And therein lies the rub: lawyers should defend limits, not remove them. Unfortunately, this is not the case in law schools or government. Rommen’s classic is a corrective to the current stupidity.