In France the revival of philosophy at the beginning of the present century led to what has been called a revival of natural law—not, however, a revival of the law-of-nature school. In this revival there were two outstanding leaders: François Gény (1861–1944)94 and Léon Duguit (1859–1928);95 the one writing from the standpoint of a neo-scholastic, the other from the standpoint of a positivist-sociological, natural law.
Gény in his philosophical work (Science et technique) subjects social life, that is, the life of the individual man as a moral entity in society, as a moral phenomenon, to the scrutiny of reason in order to discover principles which may be used to establish norms, i.e., patterns or models, for lawmaking, law finding, and the application of law.96 One might say that in Stammler’s phrase they are to give us the social ideal or in Kohler’s the jural postulates of civilization except that Stammler sought the social ideals of the epoch and Kohler the postulates of the civilization of the time and place. As a Catholic neo-scholastic jurist Gény had faith he could do more. Scholasticism was a method of formal logical development of authoritative texts. It postulated twofold truth: Revealed truth, that is, revealed in the Scriptures as interpreted in the writings of the fathers, and discovered truth, that is, truth discovered by reason, scrutinizing the universe. In the subjects of the social sciences this means scrutinizing human life. But this life is a life in society. Hence Gény insists on society as a prime factor to be scrutinized in setting up any theory of values. Thomas Aquinas sought the ‘ought’ which reason addresses to a reasonable creature. He went on the basis of the individual man as a moral entity. Gény goes on social life as a moral phenomenon—something given us as a fundamental truth which may be developed logically into its consequences. On this revived scholastic basis he calls for recognition of the element in a body of law which consists in traditional views as to the end of law and traditional pictures of the legal and social order and seeks to give us a firmer grasp of them. In his third volume Gény treats of the technique of positive law. He holds that free scientific research yields starting points for juristic and judicial construction. These starting points (donnés) are fundamental, but a technique of construction is required to build on them.97 The finding of a donné is a matter of intelligence. The technique is a matter of will. It is something done by choice, “guided only by the predetermined ends of the legal order.”98 This recognition of the process of finding starting points for legal reasoning by choice from among competing starting points by a technique in the light of received ideals is a contribution of the first importance. It brings out the most effective role of the ideal element of the law in the administration of justice. It may be added that the present day tendency of juristic thought in France seems to be to move over from the dominant positivism of the last of the nineteenth century and first decades of the present century to or toward neo-scholasticism.99
Duguit’s system is called a system of natural law because he conceives of everything in law as deriving its validity from and to be judged by a fundamental rule or principle of right-and-law. Philosophically he was a thoroughgoing positivist. Following Comte, he sought to arrive at his fundamental principle by observation and to verify it by further observation. But Gény justly observes that his règle de droit is supposed, as Duguit in many places vehemently insists, to be derived by observation of a verified fact of social interdependence, whereas in truth it comes in by an unconscious metaphysics and is given a content of the social interdependence from which it purports to be derived.100
As Duguit sees it, observation of the phenomena shows that there are no such things as rights, much less natural rights, or sovereign or subjects.101 Also observation shows there is no such thing as the distinction between public law and private law. All such ideas must be given up. We must start anew from the observed and verified fact of social interdependence through similarity of needs and diversity of functions, or, as it has become, in the industrial society of today, similarity of interest and division of labor. From this comes the rule or principle of right-and-law binding all members of a society to act so as to further this social interdependence and not to do anything that impairs it.102 As one would expect in a system of natural law, a legislatively enacted precept, although it may conform to the constitution, is not binding unless it tends to further (rather than impair or hinder) social interdependence. Hence he suggests that there should be a tribunal composed of representatives of all social classes to “judge of the legality of the law,” i.e., its natural legality, not whether it conforms to the constitution but whether it conforms to the natural-law requirement of promoting social interdependence. Observation of American experience of judical determination whether social legislation conformed to a requirement of reasonableness, or was contrary to “common right and reason” does not give one much faith in the suggestion.
Duguit’s ideal picture of the social and legal order is an idealization of a modern industrial city and the country dependent upon it in which everything turns upon efficient production in the greatest possible quantity.
It should be added that there has been a steady growth of natural-law thinking in one form or another in many countries since 1920.103
I have suggested elsewhere that we should distinguish what I have called natural natural law from what would then be called positive natural law.104 According to this distinction natural natural law is ideal law simply as ideal. It is a body of ideal precepts derived independent of the actual positive law by some method which is regarded as guaranteeing universal moral validity and applicability. Positive natural law, which is what has usually gone by the name of natural law, is an idealized version of the positive law in which the jurist was brought up, in which, postulating that it is declaratory of natural law, and that it derives its force from the ideal precepts it declares, he sets out the positively established precepts, or some of them in universal form. These idealized precepts of a positive law in which the jurist was trained are now made to appear as universal, unchallengeable and unchangeable. Thus there are two sides to natural law as we see the idea at work in legal history. For example, the lawyers, judges and teachers in the formative era of American law found their creating and organizing idea in the theory of natural law. This theory of an ideal universal law, to which an appeal lay from the received precepts of the inherited English law, was at work in legislation, in judicial decision, and in doctrinal writing and guided the creative process of applying reason to experience which has been the life of the law. But at the end of the formative era natural law became a stabilizing, not a creative, theory. It led to an idea of the constitution as declaratory of an ideal of the Anglo-American common law as in its main lines and characteristic doctrines an embodiment of universal, immutable precepts “running back of all constitutions.”105 Thus certain common-law doctrines and traditionally received ideals of the profession were made a superconstitution by which the social legislation of the end of the nineteenth century and fore part of the present century was to be judged.106
Natural natural law has been rested wholly on revelation, or on revelation supplemented by reason, or wholly upon reason. But the number of problems confronting the lawyer which can be solved from the Scripture is too small for practical purposes. The attempt to administer justice in the simple pious society of colonial New