Wednesday, January 10, 2007

Stahl's critique of natural law

Stahl presents a comprehensive critique of natural law, building on the basic principle of the Historical School, which is, as he puts it, "direct pervasion of the recognition of the positiveness of law" (Principles, p. 46), that "law ... and positive law are synonymous terms" (Principles, p. 36). Natural law cannot serve as a standard in the courtroom for two reasons: lack of objectivity and lack of precision (Principles, p. 37). In fact, it would be unjust to do so. Therefore, "the rule of natural law instead of or in opposition to positive law has the appearance of establishing the order of God over the order of men: but it is precisely the human order, the law, which is consecrated by God; it is the only common public order that He has ordained over men on earth. The rule of natural law is therefore in truth only the establishment of the arbitrariness of every opinion regarding the common public order, it is the establishment of the war of all against all" (Principles, p. 38).

Yes -- but, as the previous post about Stahl's effect on the Historical School would indicate, Stahl also in some way subordinated positive law to principles of "higher law," what he termed "the law-ideas." In fact, he argued that all law needed to reflect those higher principles, and that the lawmaker, whether the legislator or, as with custom, the historical people, had an obligation to implement those higher principles.

Two questions, approaching the position from opposite ends: 1) is this satisfactory from the natural-law or the higher-law point of view? and 2) following on the previous post, does it undermine the Historical School's emphasis on the positiveness of law?

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