Chapter 1

INTRODUCTION: NATURAL LAW THEORIES

IN THE 20TH CENTURY
by Francesco Viola

If Karl Magnus Bergbohm (1849–1927) had lived later in the 20th century,
he would have had an opportunity to use his bloodhound’s sense of smell
with much greater satisfaction in sniffing out the hidden presence of natural
law in the legal doctrines of the time (see Bergbohm 1973). I will try to carry
on his work, certainly without his acumen, but also without his preconceived
hostility.
We need to preliminarily distinguish natural law from the doctrines of nat-
ural law. The latter are manifold and often very different from one another,
but they are linked by the persistence of an identical problem, that of the ex-
istence of a law not produced by man or, more modestly, of the presence in
positive law of some strictly legal elements not posited by man. That is natural
law as a problem, while a natural law doctrine is any of the possible answers
to that problem. The problem is one, the answers many. The problem persists
throughout the history of legal thought; the answers appear and fade away and
return, at times in a renewed form, but they always depend on the historical
evolution of positive law.
Natural law theory can present itself as a deontological conception of law,
that is, it can say the way positive law ought to be. From this point of view it is
distinguished from other deontological conceptions of law by the way it identi-
fies the criteria of the legal ought.
Natural law theory can also present itself as a theory of law, that is, it can
describe law as it is. From this point of view it is distinguished from other the-
ories by the way it defines the concept of law. It is only in this second sense that
natural law theory can properly be situated in the sphere of the knowledge of
law and so can be compared with, and can compete with, other theories of law,
and in particular with legal positivism.
In the first sense natural law theory belongs to the sphere of ethics or poli-
tics or, more precisely, to the sphere of the moral or political criticism of posi-
tive law, and in principle it is compatible with legal positivism. Nevertheless, in
the history of legal thought it is not at all easy to distinguish the two meanings
of natural law theory, in part because a deontological conception of law often
presupposes a concept of law already fraught with elements of natural law.
Since the most typical and controversial meaning of natural law theory is
the one linked to its claim to be a theory of law, attention will be paid here to
this meaning.
© Springer Netherlands 2016 3
E. Pattaro, C. Roversi (eds.), A Treatise of Legal Philosophy and General Jurisprudence,
DOI 10.1007/978-94-007-1479-3_29
4 TREATISE, 12 (2) - 20TH CENTURY: THE CIVIL LAW WORLD

Natural law theory as a theory of law is generally speaking interested in ad-

dressing some of the following contentions: (1) that law must be described in
light of its practical sense, that is, it must be described as a reason for action;
(2) that the contents of law cannot be determined regardless of an attentive
look at human nature; (3) that legal theory implies value judgments with a cog-
nitive content; (4) that law and morality are necessarily connected; and (5) that
natural law has a legal character.
Obviously, it is very unlikely that a doctrine of natural law should endorse all
of these contentions, and so there will be stronger and weaker conceptions of
natural law. Which of these contentions are strictly indispensable in characteriz-
ing a theory of law as a natural law theory? Which of these characteristics is the
strictly indispensable one, without which one can no longer speak of a natural
law theory? It is impossible to answer this question without moving into the in-
ternal point of view of a doctrine of natural law. For this reason, in this historical
investigation we will adopt the broadest possible meaning of natural law theory.
For natural law theory to maintain its salience, it cannot just recognize that
positive law in its origin and in its practical application is not self-sufficient,
having to resort to external elements (of a moral, social, or economic nature).
Nor even can it just observe that legal systems, as cultural expressions, are
steeped in positive morality. Rather, the stronger claim to be made is that fac-
tors not ascribable to human will play a normative role and are already marked
by their own legality, even if they still need to be taken through a process of
positivization. This also explains why among the distinctive characteristics of
natural law theory I have not included the distinction between what is natural
and what is artificial. The fact is that not everything that is artificial stands in
opposition to nature, and indeed nature, if it is to have any value, always needs
to be expressed by human work.
After a century marked by legal positivism, on different occasions the 20th
century witnessed a return to natural law. This is not so much due to antipositiv-
ism, which grouped a range of philosophical tendencies (see Fassò 2001, 214).
Indeed, the reciprocal independence of philosophical and legal positivism has
been abundantly demonstrated (see, for instance, Pattaro 1974a). The reason
is instead to be sought in the conjunction between social transformation and
the triumph of legal-philosophical speculation, which became autonomous both
from the philosophers’ philosophy of law and from the jurists’ philosophy of law.
Three revivals of natural law can be identified: one at the beginning of the
20th century, one provoked by World War II, and one proper to contempo-
rary constitutionalism beginning in the last two decades of the 20th century.
All three belong to the so-called short century, but we need to realize that the
same label encompasses a broad spectrum of different cultural phenomena
and philosophical trends. If there are three rebirths, it means that there have
been as many deaths or crises (see Bobbio 1965a, 180) and consequent returns
of legal positivism (cf. Lang-Hinrichsen 1954).