The dominating opinion of science academics today is that the methods of the natural sciences are the only scientific methods. Pope John Paul II calls this scientism in his encyclical Fides et Ratio, a "threat to be reckoned with." (1) He then explains: "This is the philosophical notion which refuses to admit the validity of forms of knowledge other than those of the positive sciences; and it relegates religious, theological, ethical and aesthetic knowledge to the realm of mere fantasy." (2) This is equally true of legal science insofar as it does not only deal with positive law, but with questions of justice, human rights, and especially with natural law.
Many recent methodological works have shown that a concept of science limiting its scope to natural sciences is not only insufficient, but inadequate and simply arbitrary. (3) Long ago, Aristotle was able to recognize the reason for errors of former philosophers in the fact "that although they studied the truth about reality, they supposed that reality is confined to sensible things (thus their statements, though plausible, are not true....)" (4)
The human capacity of knowing truth has been affirmed by the greatest philosophers, from Socrates to Plato, Aristotle, and the Stoics, in such a way that today one is able to grasp the truth of the relevant findings. Aristotle not only says that "philosophy is rightly called a knowledge of Truth[,]" (5) but he also shows with compelling logic that skeptical and relativistic ideas are self-contradictory and untenable. (6)
They have many times since been refuted convincingly. (7) Innumerable philosophers have taken up true findings which are contained in true philosophy. It is naturally impossible to even mention them all. The most famous are St. Augustine and St. Thomas Aquinas. Pope John Paul II mentions in his encyclical Fides et Ratio not only these names, but many others, including John Henry Newman, Antonio Rosmini, and Edith Stein. (8) I would like to add to these names Dietrich von Hildebrand, whose philosophy is very close to the Lublin School promoted by Karol Wojtyla. (9) Pope John Paul II himself refutes the errors of skepticism, relativism, positivism, scientism, and others, especially in his Encyclicals Evangelium Vitae (10) and Fides et Ratio. (11) In spite of the fact that these theories have been proven to be untenable, they are today widespread and dominant. They form part of the main obstacles for the knowledge of natural law. Therefore, it seems to me necessary first to discuss some of the main arguments against natural law in order to show that they are erroneous and therefore not at all valid arguments.
Second, I will, as far as possible, try to show how natural law has been known since antiquity. It was not only known in a theoretical way, but it was recognized as an existing and knowable reality, which everyone is obliged to know in order to be able to be just. (12) Through the work of Roman jurisprudence, it formed the legal order that governed all of Europe until the so-called codifications of natural law in the eighteenth and nineteenth centuries. (13) In Austria, this codification from 1811 is still valid though many parts of it were changed for various and partly political reasons. But two paragraphs which refer expressly to natural law are still in force. I will come back to one of them later.
SOME OF THE MAIN ARGUMENTS AGAINST NATURAL LAW
Skepticism and Agnosticism
Natural law is necessarily denied by every form of skepticism and agnosticism as for instance developed by Christian Thomasius (1655-1728). He started as one of the natural law specialists of the enlightenment, but he wanted to detach the natural law from any theological dependence and to establish it on autonomous human reason. (14) As Stefan Buchholz has shown in a masterly analysis, the autonomized human reason ends up in its self-destruction. (15) The fundamental premise: "voluntas semper movet intellectum" (the will always moves the intellect) turns in its consequence the "animal rationale" into a "servus passionum suarum" (slave of one's passions). (16) The human intellect and the liberty of will are denied. As a consequence of this assumption, human knowledge becomes a product of constraint and by that very fact cancels itself. According to Christian Thomasius, passions stamp the will and the will imposes its prejudices on reason ("voluntas praeiudicium facit intellectui"). (17) In this way, individual knowledge is absolutely excluded. From this it follows that all men in fact are fools. (18) They can only be guided by positive law ("exinde necessitas iuris positivi"; therefore the necessity of positive law). (19) The subject, who as a fool is held to be "under age," has to accept the command of the law without having criteria to examine the question of the rightness and justness of a law. (20) By his submission he serves the unifying goal of the state. (21)
As far as the principle "voluntas praeiudicium facit intellectui" (will imposes its prejudices on reason) is concerned, there can be no doubt that this phenomenon really exists. But there can equally be no doubt that the consequences, which Thomasius draws from this fact, are not the whole truth. The complete denial of human reason and free will is, in view of all human knowledge since antiquity, simply absurd. It is the consequence of a distorted concept of human nature. Thomasius only forgets to explain why and how he himself should be exempt from being a fool. He, on the contrary, feels himself to be entitled to identify all those as fools who contradict him. (22)
"Is" and "Ought"
A seemingly more scientific argument is founded on the supposed dualism of "is" and "ought" with the consequence that from an "is" no "ought" can follow. According to this argument, every attempt to derive natural law from nature as an "is" was labeled as "naturalistic fallacy." (23) Nature in this argument is presupposed to be only matter which can not contain any norms. And if matter is the only existing "is," then logically from an "is" without a normative content, a normative "ought" cannot be derived. Therefore the supposed deduction of norms from nature as an "is" is argued to be a "naturalistic fallacy." In the historical reality, however, natural law was since the earliest times, as documented since the second millennium B.C., never deduced from a non-normative "is." It was seen to be "evident to reason," as [section] 16 of the Austrian Civil Code ("ABGB") still affirms.
The argument concerning the "naturalistic fallacy," which originates from David Hume, was developed in the field of legal theory especially by Hans Kelsen in his Pure Theory of Law. (24) I will not go into the details of Kelsen's arguments concerning this problem here, but rather show the "wide and damaging impact on Catholic theologians" which these and similar theories caused. (25)
One example of this, Josef Fuchs, is especially important because of his teaching at the Pontifical University Gregoriana, which formed a great number of priests and later bishops over thirty years with ideas that simply destroy the basis for understanding natural law. If one only reads his Article "Naturrecht oder naturalistischer Fehlschluss?" (Natural law or naturalistic fallacy), (26) it becomes immediately clear that according to him, the entire knowledge of natural law since antiquity, including the whole teaching of the Church up to Vatican II and the Encyclicals Veritatis Splendor, Evangelium Vitae, and Caritas in Veritate, is based on "naturalistic fallacy." (27) This assertion can only be marked as an incredible distortion of the historical and factual reality. (28) Besides, the so-called "naturalistic fallacy" involves a real fallacy, namely the conclusion from sensual realities to the inexistence of spiritual realities. Even Kelsen himself affirms that norms exist. (29) He expressly says: "One cannot deny that law as a norm is a spiritual and not a natural (material) reality." (30)
Another example is still more recent. At the eighth Assembly of the Pontifical Academy for Life in 2002, Prof. Saturnino Muratore S.J., professor of philosophy, epistemology, and metaphysics at the Theological Faculty of Naples (Italy), presented a paper, which could not be published in the Proceedings of the Assembly because it went against the teachings of the Church. (31) Therefore, I can only quote from the paper which was distributed to all members of the Academy but I think it to be important to know what kind of ideas are taught to future priests. Muratore affirmed that "the modern ideal of science has already substituted the Greek one" and that the development in the twentieth century "led to the overcoming and the discrediting of the classicist interpretation of culture." (32) In this view, everything that was known since antiquity before the end of the seventeenth century, which is identified "as the date of birth of modern science," (33) would have to be considered as antiquated "classicist, "essentialist," and "fixist" ideas which have long since been superseded by modem science. (34) Muratore even feels himself "led ... to suspect that the Classicist pretention, which remains in scientific knowledge, is still a devious and dreadful danger to our present cultural situation." (35) It is clear that everything which I will have to say in my Article would fall under these verdicts. If they were true, I ought to throw my Article into a...