It is important to note that Rommen is not entirely critical of methodological positivism. He allows that so-called analytical jurisprudence can be subtle and refined.9 After all, lawyers should study law as it is—in the statute books, judicial decrees, and policies of the state. Yet, by consigning the moral predicates of law (good, bad, just, unjust) to a realm of ethics that is separated, rather than merely distinguished, from jurisprudence of the positive laws, the methodic positivists can become world view positivists by default. In Germany, their “tired agnosticism” with respect to the moral bases and ends of positive law left the German legal profession intellectually defenseless in the face of National Socialism.10
In The Natural Law, Rommen traces the historical and philosophical roots of this “tired agnosticism.” He wants to show that the disrepair of constitutional democracy is the result of skepticism and agnosticism, which themselves are the cultural effects of disordered philosophy. The idea that the project of constitutional democracy suffered from philosophical neglect was a lesson drawn not only by Rommen but also by a number of other influential European émigrés to the United States. In 1938, the year that Rommen arrived in the United States, three other important émigrés debarked on these shores: the French political theorist Yves R. Simon, the Austrian legal philosopher Eric Voeglin, and the German philosopher Leo Strauss. The most famous Catholic thinker of the century, Jacques Maritain, arrived in New York in 1940, one year before Hannah Arendt. These émigré intellectuals explained the European problem to Americans and proposed also to explain America to itself.
Beginning in the late 1930s and through the 1950s, there was a renascence of interest in natural law—one that corresponded almost exactly to the American careers of the European intellectuals who had fled the chaos of Europe. The extraordinary talents of these émigrés were almost immediately recognized. Consequently, they were able to introduce Americans to a more classically oriented philosophy and taught a new generation of students in law and political philosophy to ask questions and to look for answers in places long forgotten by American schools. Arguably, they rescued the American departments of political science from positivism and behavioralism.
After stints at small Catholic colleges, Heinrich Rommen became a member of the faculty at Georgetown. The rest of the cohort of Europeans tended to cluster at three other universities. Dr. Alvin Johnson, President of the New School for Social Research in New York City, recruited Leo Strauss, Hannah Arendt, and other European-trained social theorists. At the University of Chicago, Robert Hutchins, Mortimer Adler, and John Nef, head of the Committee on Social Thought, also recruited Europeans, many of whom (Simon, who came by way of Notre Dame, Strauss, and Arendt) would eventually hold posts at Chicago. Ninety miles away, in South Bend, Indiana, Notre Dame’s president, John F. O’Hara, began building what was called “the Foreign Legion.” Most of the émigrés were either Catholic or Jewish, and Father O’Hara took full advantage of the Catholic connection to build the faculty at Notre Dame. Waldemar Gurian and F. A. Hermans came to the University of Notre Dame in 1937. Although compared with Maritain and Strauss they were lesser lights in the constellation of émigré scholars, Gurian and Hermans founded the Review of Politics, which led to the foundation of the Natural Law Forum (today, the American Journal of Jurisprudence).11 Both journals quickly became important media for both Catholic and Jewish émigrés.
In the brief course of five years, therefore, the New School, the University of Chicago, and Notre Dame became, in a curious way, sister institutions. Political philosophy was pursued in the light of the ancient and medieval traditions, with a multidisciplinary breadth that was distinctively continental. It would be anachronistic to characterize this group of thinkers as “conservative.” In their respective European contexts, they rejected the various species of nineteenth-century romanticism that formed the staple of European conservatism in fin-de-siècle Europe. In hindsight we see that the advent of a conservative intellectual movement in the United States would have been unthinkable without these Europeans. Among other contributions, for present purposes, they called attention to the perennial debate over natural law.
With respect to the problem of natural law, what did these Europeans find upon their arrival? The answer is that, in the first decades of this century, American thinkers had given relatively little attention to natural law. If natural law was ever mentioned, it was usually in the context of theories of jurisprudence (rather than philosophy or political philosophy) and even then in a derisive or dismissive tone. In his brief but nonetheless influential 1918 essay “Natural Law,” Oliver Wendell Holmes declared, “The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere.”12
It is a historical fact that ideas of natural law and natural rights shaped the Founding of the United States and in the 1860s its refounding. Nonetheless, American academicians and jurisprudents generally regarded natural law as an antique metaphysical ghost—an abstraction drawn from an obsolete philosophical conception of nature and the human mind’s place within it. At the turn of the twentieth century, the educated classes thought of “nature” not according to the classical conception of an ordered cosmos of ends, nor even according to the Enlightenment understanding of fixed physical “laws of nature”; rather, nature was conceived according to one or another evolutionary scheme within which the human mind exercises creative, pragmatic adjustments.
At the same time, American legal theorists and jurisprudents resisted the pure positivism entrenched in England and in some legal cultures on the Continent.13 They recognized that neither laws nor a legal system as a whole could be explained simply on the basis of the will of the sovereign. Nor for that matter were the Americans satisfied with a formalistic treatment of legal rules. Having jettisoned both the classical and modern theories of natural law, the American legal mind was forced to turn elsewhere for an account of the extralegal bases of law. Such advocates of “sociological jurisprudence” as Louis Brandeis urged judges to set aside mechanistic and formalistic logic of “rules,” and to interpret law in the light of economic and social facts. While not fully reducing law to social policy, sociological jurisprudence took the first step in that direction. Legal realists, including Karl Llewellyn and Benjamin Cardozo, took the argument further, contending that judges make law (ius facere) rather than merely discovering it (ius dicere). To them, law is to be made after considering multiple social, economic, and political facts. The tag “legal realism” thus conveyed the notion that a proper account of law is less a matter of explicating legal doctrines than of observing what judges actually do when they interpret and apply law, namely, contribute to the formation of social policy.
Although it might be doubted that these schools of jurisprudence rescued American law from the clutches of positivism, certainly they depicted the law as something more complicated and dynamic than the command of a sovereign; at least temporarily, these schools of jurisprudence satisfied the quest to have positive law rooted in something more than itself. The theories were tailor-made for a people agnostic about metaphysical truths but irrepressibly earnest in pursuing the tasks of progress and social reform.
There were, of course, notable exceptions to this rule. Edward S. Corwin’s 1928–29 articles in the Harvard Law Review, eventually published as The “Higher Law” Background of American Constitutional Law (1955), traced both the theory and practice of American constitutional law to ideas of natural justice implicit in the English common law tradition, and beyond that to the ancient concept of ius naturale. It is worth noting, however, that Corwin’s work was not widely read until it was assembled into a monograph in 1955, after the natural law renascence was well under way. In the early 1930s, Charles Haines’s The Revival of Natural Law Concepts (1930) and Benjamin Wright’s American Interpretations of Natural Law (1931) also investigated the role of natural law in American jurisprudence.
Still, Corwin, Haines, and Wright were not especially interested in the philosophical grounds of natural law. Like the advocates of sociological jurisprudence and the legal realists, they were interested primarily in what judges do. To be sure, until the 1890s there was relatively little reason for judicial review to ignite debates over natural law. For example, in federal cases adjudicated during the early