Abstract

It is a commonplace to observe that the idea of natural law has polarised contemporary legal philosophy; jurists who are not for it are against it. More than once in its long history, going back to the very origins of philosophy in Western Europe, the natural law has been in eclipse, but it has invariably survived and, as one of its severest critics, Bergbohm, was forced to admit, the funeral orations pronounced over it have proved to be premature. In the nineteenth century Benthamite utilitarianism, Comtist positivism and the historical jurisprudence of von Savigny made a lean period for the natural law. But the twentieth century saw the revival. In 1910 appeared J. Charmont’s Renaissance du droit nature!; the 1920’s saw the first of Jacques Leclercq’s Lefons de droit nature!; in 1930 Charles Grove Haines studied the natural law in contemporary jurisprudence in The Revival of Natural Law Concepts; and in 1936 appeared the first edition of Heinrich Rommen’s Die ewige Wiederkehr des Naturrechts. The movement towards the natural law, of which these books are only some of the indications, was greatly accelerated when men discovered the need for a defence against the excesses of totalitarian power; and, after the war, the Nuremberg trials proceeded upon what amounted to a basis of natural law. Not all, of course, are prepared to admit that the natural law is the only alternative to positivism and relativism in legal philosophy or even that the concept possesses vitality: the contemporary interest in the natural law, Norberto Bobbio has observed rather sourly, is rather like the interest of anatomists in a cadaver.