Electronic copy available at: http://ssrn.com/abstract=1686059
Human Law and Natural Law in the Catholic Tradition:
Authoritative Guides to the Good Life
Patrick McKinley Brennan
John F. Scarpa Chair in Catholic Legal Studies
Villanova University School of Law
So saturated is our culture with the appearances of law, we do well to recall that
human law is the artifact of a discovered and actualized capacity, not an inevitability, no
matter how much Leviathan pushes and shoves and enacts.
Our human capacity to make
law, moreover, as Friedrich Hayek famously remarked, “has justly been described as
among all inventions of man the one fraught with the gravest consequences, more far-
reaching in its effects even than fire and gun-powder.”
As the comparison to fire and gun powder suggests, what people
can be destructive.
The comparison is not fanciful.
“Our modern dictators are masters of
legality,” Heinrich Rommen observed.
“Hitler aimed not a revolution, but at a legal
grasp of power according to the formal democratic processes.”
We should ask, therefore, as did Rommen, whether enactments that emerge from
formal democratic processes yet are destructive of humans and what is good for them rise
to the level of law.
Some influential voices say yes: whatever the sovereign enacts is law,
regardless of its content and consequences.
Others counter that justice, not just sovereign
will, is necessary if an enactment is to be accounted as law.
In its canonical form, this
latter account of law states that to the extent a “law” is unjust, it is no law at all.
The question, then, reduces to this:
On what basis
are we to settle the definition
When Catholics come to the topic of human law, they do so from within a
tradition that recognizes law long before enactments of the sort that concerned Hayek and
The Bible is permeated with the Hebrew concept of
, translated into
and into Latin as
Drawing in addition from Greek, Roman, and
Neo-Platonic philosophical sources, the Church Fathers and later the Scholastics
developed the creational doctrine of the “law of nature” or natural law.
This they did as
they developed a doctrine of the “eternal law,” which St. Augustine defined (in the