Book Notes

Abstract

BOOK REVIEWS 103 mutual implication of ideas, became the Logos, the perhaps infinite total of all the ideas that govern the universe, or the cosmopolis. The lawyers and statesmen of Rome were more skeptical than Virgil. They did not trust the responsibility for their affairs to the gods.... They never doubted the necessity to seek the reasons for their laws; they asked their questions :of nature rather than of the gods. The liberties under law of the American citizen are not only a slogan to be sold but a model to be loved, hated, feared, and emulated around the world, We and all the other peoples in the world are driven to think cosmopolis. The dialectical speculation of the Middle Ages did not deny the historical order, but added to it the nontemporal : dialectical hierarchy of laws, positive laws of custom and statute, the jus gen~ium, the natural law, and the divine law. The dynamic strivings of history take place continually and simultaneously under these legal auspices. The levels of law provide an order of appeals from lower to higher cosmic tribunals. We split the natural world into two parts, one that is drained of values, and one that is haunted by errant emotions and wishes. This split is the work of about one century of the late Renaissance. The defenders of the classical tradition of natural law, who should assert teleology as a parallel and coextensive interpretation with mathematical physics, actually defend teleology only in man.... The classical doctrine of human nature then exists in the modern world as a mere humanism. This, I believe, is what paralyzes the doctrine of natural law in the modern world." "If we conceive natural law as a body of rules for the making, administration, and adjudication of positive laws, we have something like a solution.... Regulation by natural law then.., does not dictate positive law, but it sets the processes of law in operation and directs their activity and influence through dialectic, analogy, and example.... Natural law, as reason, sits within the mind of the magistrate, lawyer, and citizen as the internal teacher (Buchanan, pp. 90-93, 96-97, 99, 111-=12, 120, 130,136--137). The logical stages in the production of common law are very similar to the logical stages for the production of natural law: the projection of the abstract functioning principles of institutions and the counter-projection of those principles as standards of behavior. The standards of behavior (the common law) carry the obligation of a functional ethic stating the behavioral norms which are logically entailed by a social system. But the functional source of the eth!c (the law) announced by judges is not perceived. And although the ethic is enIoreea vy tne s~a~eit aoes not appear to be producedby the state. The common law sometimes appears to be an ethic which is announced by, not produced by, man. The common law appears to express an autonomous ethic which exists apart from politics as a higher law (Wheeler, pp. 231-233). In addition to these (and many more) gleanings from the history of natural law, we call attention to a critical history of the technical legal meaning of "public consensus" by John Courtney Murray. The aim of his historical analysis is to find a sharp distinction between "publicopinion" and "the public consensus." His conclusionis: The quality of being in accord with reason is the noneontingentelement in the body of thought that constitutes the consensus. Brute fact or sheer experience have no virtue to elaborate themselves into controlling rules of public conduct. The transcendence of experience and the transformation of fact is the work of reason. The act whereby the doctrine of the consensus is formulated is not the act of inquiry into the facts, nor the act of reflection on the experience. It is an act of judgment, an exercise in moral affirmation or denial.... The key to the most curious aspect of the whole matter is that the economic powers in society accept the judgments , directions, and corrections of the public consensus, even when these are not backed by the coercive force of the supreme public power (Murray, pp. 79-80). HERBERT W...