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July 18-23, 2004


The Ethical Traditions of Europe and the USA:

Common Roots and Possibilities for Dialogue






Yves Simon

La tradizione del diritto naturale: le riflessioni di un filosofo

trans. F. Di Blasi (Thomas: Palermo, 2004)




Russell Hittinger

William K. Warren Professor of Catholic Studies, Research Professor of Law, and Chair of the Department of Philosophy and Religion, University of Tulsa



At the outset, I would like to thank Professor Fulvio di Blasi for undertaking the Italian translation of Yves Simon's The Tradition of Natural Law.  I should also thank Tony Simon for the opportunity to write an introduction to the 1992 edition published by Fordham University Press. 

As you can imagine, I have much to say about this book.  But, in view of the fact that this a panel discussion, with three other speakers, I shall not monopolize the time with a long lecture.  Rather, I will take perhaps 20 minutes to place Simon's work in the context of the theme of this congress:  The ethical traditions of Europe and the USA: Common roots and possibilities for dialogue.

The material in Simon's book was given originally as lectures at the University of Chicago during the winter of 1958.  On both sides of the Atlantic, the decade of the 1950s represented a high-water mark of interest in the philosophy and jurisprudence of natural law.  Simon's lectures were given just ten years after the U.N. adopted the Universal Declaration of Human Rights (1948), and five years before Pope John XXIII's famous encyclical, Pacem in terris (1963), which outlined some 25 natural, or human rights that ought to be honored by systems of positive law.  Indeed, between 1945 and 1965 there seemed to be a consensus, at least in the western world, that certain universal principles of justice ought to be recognized and made juridically effective not only in the covenants and instruments of international law, but also in domestic constitutions. 

With regard to our theme of "common roots," it is interesting to note that, on the American side of the Atlantic, the philosophy of natural law and natural rights was inspired chiefly by European émigrés who took posts at American universities during the 1930s and 1940s.  For example, at the University of Chicago, Simon's fellow French national, Jacques Maritain, as well as Simon's colleague on the Committee for Social thought, the German, Leo Strauss, also lectured and wrote on issues of natural law and the foundations of democratic polity.  At Georgetown University, in Washington, D.C., the German theorist, Heinrich Rommen was a prominent scholar of natural law; at Louisiana State University, the Austrian, Eric Voegelin; and at Notre Dame, the Germans, F.A. Hermans and Waldemar Gurian founded the Review of Politics, which lead to the foundation of the Natural Law Forum - a journal explicitly devoted to natural law, and which exists to this very day as the only scholarly journal on natural law in the United States.[1] 

The influence of these European thinkers was due to the fact that they had personally experienced the crisis of the 20th century, and therefore possessed a keen sense of the contest of ideas and ideologies at stake in that crisis.  Moreover, in marked contrast to their American colleagues, who were trained mainly in social sciences, and whose philosophy is best described as a kind of smug pragmatism, studiously ignorant and dismissive of intellectual traditions prior to the Industrial Revolution, the Europeans were classically trained; the Catholics among them also brought to American universities the intellectual resources of the scholastic tradition, both medieval and modern.[2]  To be sure, the 18th century founders of the American Republic had a mature understanding of the different schools of natural law jurisprudence.  A "creed" of natural rights never entirely disappeared from the American mind.  Even so, when the European scholars began to arrive on American shores in the late 1930s, serious academic work in the philosophy and jurisprudence of natural law was virtually dead.  When we pick up and read Simon's Tradition of Natural Law, we enjoy a window onto an important moment in the trans-Atlantic dialogue - at this moment the intellectual light came from Europe.

Now, I should say just a few words about the crisis that sparked renewed interest in natural law and natural-law jurisprudence on both sides of the Atlantic. 

The Nobel Prize winning economist, Friedrich Hayek wrote:  "[T]he deliberate making of law, has justly been described as among all inventions of man the one fraught with the gravest consequences, more far-reaching that in its effects even than fire and gun-powder."[3] Hayek is right, of course; but he might just as well have said the modern state.  When we think of modern man we think of the Enlightenment, the sovereignty of reason, and of ideologies of liberty; we think especially of his technologies. But his greatest and most sustained work was the state.  If we ask a modern man who or what is sovereign, he would not say "reason," "the individual," or "science"; rather, he would say, without hesitation, "the state."  The peoples of Europe and her former colonies were prepared to make almost any sacrifice to transform their polities into states.[4] 

Modern states are geared to deliver public goods on a mass scale inconceivable to polities prior to the 19th century; not merely the traditional goods of domestic security, religious conformance, and national honor which defined the horizon of older regimes, but every kind of material and spiritual good: from education and scientific research, to medical care, highways, economic opportunities, and retirement pensions, to wild-life sanctuaries.  What is most important is that the modern state is expected to accomplish these prodigious ends not merely efficiently, but also legitimately and fairly: that is, by means of law.  Even despotic and totalitarian states are careful to create the appearance of legality for their powers and policies. 

States create law at an astonishing rate.  This phenomenon was only accelerated through the crises of wars and the Great Depression.  For example, the Federal Register, which contains the laws, administrative regulations, and executive orders of the United States government, consists annually of more than 87,000 pages.  No legislator could possibly know all the laws he makes; no executive could know all the laws he must enforce; and no judge could survey with any scientific or historical rigor all of the case-law precedents.

These two factors - the requirement that the state distribute an indefinite number of goods on a mass scale, and the requirement that it be done through law - makes the modern state more rather than less vulnerable to questions and criticisms drawn from natural law.  Simply put, there are more ways, either by omission or commission, that a state can act unjustly:  some laws might fail to produce a just distribution of goods, others might produce conflicts within the system of law itself, while still others might be found prima facie immoral or unjust.  Paradoxically, the scale and complexity of modern legislation destroys the myth that human law is a free-standing, self-justifying system, independent of moral law. 

Simon's generation - the World War II generation - saw the modern state go wrong catastrophically.  World War I saw nine-million people killed in battle, surpassed within a few decades by the 15 million battle deaths of World War II.  The total death count in the international and domestic wars, revolutions, and violent conflicts of the 20th century is about 35,654,000.  If we add to this number the non-battle deaths attributable to government, perhaps (albeit, a high estimate) 360,000,000 men, women, and children have been shot, beaten, tortured, knifed, burned, starved, frozen, crushed, or worked to death; or buried alive, drowned, hung, and bombed.[5]  And this does not even begin to estimate all of the other non-lethal uses of force over individuals, associations, churches, and economic activity.

In 1945, after two world wars, the crown jewel of modernity - the sovereign nation state - was brought before the bar of moral judgment.  The Protestant theologian, Karl Barth aptly called this the era of "disillusioned sovereignty."[6] Throughout the West, it was agreed that the state is to be limited not only by institutional checks and balances - that is to say, not only by the artifact of positive law - but also by human rights. The Universal Declaration of Human Rights (1948) and the European Convention of Human Rights (1950) quickly gave expression to this principle: namely, that a legitimate government is not merely one having a written constitution, based on popular sovereignty, with separation of powers, but also a government that makes natural (or human) rights justiciable.  Not only were new constitutions and international instruments brought into existence in light of this principle, but long-standing ones were revised accordingly.[7] 

Most Europeans do not appreciate how profoundly the American constitution was revised in response to the crisis of the 1930s and 1940s.  In 1943, the Chief Justice of the Supreme Court, Robert Jackson, declared that the judiciary would assume "the task of translating the majestic generalities of the Bill of Rights . into concrete restraints on officials dealing with the problems of the twentieth century."[8]  Without any formal amendment of the Constitution, and without any felt need to elaborate the philosophical grounds of their project, Jackson and his colleagues insisted upon discovering natural or human rights implicitly embedded in the text of the U.S. Constitution.  Jackson's jurisprudence more resembled a lesson in moral philosophy than a lawyerly construction of law; but such is necessary, he argued, to insure that legal verdicts conform to the moral order.  Two years later, Justice Jackson was appointed to the Nuremberg Court, where he was primarily responsible for developing the legal grounds for the charge of crimes against humanity. 

Of course, what I've said thus far is a very sketchy and incomplete picture of the political, legal, and ideological environment surrounding Yves Simon's lectures on natural law at the University of Chicago.  Like most other natural law theorists of his generation, Simon understood the practical imperative of the post-war human rights project.  At the outset, he observes that natural law is "a subject of direct, intense, daily, and tragic interest to all sorts of people whose philosophic tools may well be primitive" (14).  The problem of natural law, he contends, emerges first as a practical rather than a theoretical issue.  Wherever human law causes injustice, or prevents the remedy of injustice, the question of "what is right and what is wrong by nature" is irrepressible. Perfect or even adequate theoretical consensus about natural law is rarely achieved by philosophers, much less by men and women of action.  Simon's friend, Jacques Maritain famously argued that lack of theoretical consensus about natural law should not stand in the way of practical agreement about human rights.  A "practical ideology," to use Maritain's own words, is feasible because the experiences and practices of modernity have contributed to a clearer moral sense of what belongs, of right, to human persons.

For his part, Simon agreed that much discourse about natural law is driven by practical necessities that outstrip the kind of consensus proper to philosophy.  A "treatise on natural law which would be purely philosophic and in no way influenced by the ideological needs of the time," he writes, "is, in fact, almost impossible." (23)  At the same time, Simon worried about the ideological factor.  By "ideology," he did not mean a set of false propositions; rather, he meant a set of aspirations in propositional form. 

When what is actually an expression of aspirations assumes the form of statements about things, when these aspirations are those of a definite group, and when that group expresses its timely aspirations in the language of everlasting truth - then, without a doubt, it is an ideology that we are dealing with. (17)

"An ideology, considered precisely as such, is a system of propositions which carry a heavy sociological weight." (20)

For example, on my side of the Atlantic the aspiration that natural rights be recognized and secured by the state almost always carries the additional presumption that natural justice is realized in individual immunities from state power.  Generally, conservatives favor rights of immunity in the spheres of property and family, while liberals favor immunity from the state on issues of self-expression and sexual lifestyle.  Either party would be prone to what Simon calls "belligerent universalism" (7) - that is to say, the conviction that natural rights as immunities from state power ought to be realized everywhere.  For their part, Europeans generally worry about natural rights more in the idiom of entitlements which flow from human dignity.  Just last summer, the German constitutional court discovered a fundamental right to receive medication to cure sexual impotence, and accordingly commanded the government to supply Viagra to those who qualify. 

These ideological emphases and polemics do not constitute a reason to be skeptical of a natural-law foundation of human rights.  Since 1948, international human rights instruments reflect both idioms - that of immunities, and that of entitlements.  In the real practice and life of political communities, belief in natural rights flowing from human dignity will always have ideological coloration, depending on contingent historical and cultural factors.  Speaking only for myself, it is very difficult to imagine Americans not expressing their belief in natural law in the idiom of immunities (negative liberties) because this is part of the lived experience and national character.  While grounded in certain universal ends of human nature and principles of justice, the expression is partial, and only ideologically can it pretend to lay claim to the entire picture.  But, belligerent universalism, un-moderated by reflection and dialogue, is an enemy of human rights; indeed, it can breed skepticism about the very goods it attempts to assert.  Simon surveys these problems as well as anyone in his generation.

The deeper problem, noted in the opening pages of The Tradition of Natural Law, is when the aspiration to natural justice combines with a deep skepticism about human nature.  In Simon's day, this skepticism went under the flag of Existentialism - "the proposition that man has no nature but only history." (3)  The proposition that human nature is an historical construct is quite fatal when combined with a belligerent universalism.  On this view, what remains of human dignity, and therefore, what is entitled to be protected as a human right, is nothing other than pure freedom, the power to construct identity and value.  However, rather than terminating in a nihilistic conclusion with respect to human rights, the human rights project is expected to accommodate the premise that man has no nature other than what he or she constructs.

The different emphases given by Americans and Europeans to the human rights project inevitably come to mean something entirely new.  From the proposition that the human good is self-constructed, it will seem to follow that society or the state has no legitimate title to impose one or another conception of the human good.  Required to adopt neutrality on this question, society can only debate the relative merit of laws or policies which neutrally facilitate individual self-construction.  Human rights can take either the route of an immunity (against society or the state imposing particular conceptions of the human good) or that of entitlements (useful goods and services which equally, that is, neutrally, facilitate individual choice). 

Philosophically, of course, the proposition that man has no nature but only a history - that man is constituted only in self-enacted freedom - is antithetical to the traditions of natural law.  But Simon understood the possibility of an ideological fusion of the two.  He worried that a deeply and widely felt consensus about the evils and crimes of despotic and totalitarian states, the very experiences that made possible the human-rights project of the post-war period, could also include skepticism that there exists a natural, and universalizable ground of the humanum.  Fifty years ago, suspicion that discourse about human nature is only another expression of state or social or cultural despotism was idea held by a small coterie of intellectuals.  But this is no longer so.  In the West, it is a respectable, indeed "mainstream," opinion that human (natural, fundamental) rights are meant not to express, but to protect us in the public order against social, religious, or philosophical convictions that there exists a unity human nature that precedes, transcends, and provides norms for individual choice.  Natural justice itself demands that convictions about human nature belong in the private sphere.

At the beginning of his lectures Simon says, "Whether there is such a thing as a universal human nature cannot be dodged; it is a question that must be settled before proceeding to the discussion of natural law." (6)  I propose that nearly fifty years after Simon's lectures, the problem stands pretty much as he positioned it in 1958.  Ordinary experience will provide plenty of reasons for believing in a moral law prior to that of the state.  Today, on both sides of the Atlantic, the truly acute problem is neither legal or moral in nature, but anthropological.  The problem that left unresolved by Simon's generation was how to reach settled convictions about a ground of human dignity adequate to the almost boundless enthusiasm for the project of human rights. 

[1] Now entitled The American Journal of Jurisprudence.

[2] Palermo can lay claim to one of the founding fathers of neo-scholastic natural-law theory, the Jesuit, Luigi Taparelli, who taught at the Collegio Massimo for sixteen years.  Assigned to teach natural law, Taparelli could find no useful textbooks, and so he decided his own.  Thus, Saggio teoretico di diritto naturale appoggiato sul fatto, that is, the Theoretical Treatise on Natural Right Based on Fact(1840-43), a treatise that influenced Popes Leo XIII and Pius XI, and, beyond them, the Thomists of Yves Simon's generation.

[3] F.A. Hayek, Law, Legislation, Liberty  vol. 1 (University of Chicago, 1973), at 72

[4] History testifies that the task of state-making over-shadowed any particular ideology, creed or class: partisans of monarchy and democracy alike - even Marxists dedicated to the withering away of the state had to have a sovereign state.

[5] And this does not even begin to estimate all of the other non-lethal uses of force over individuals, associations, churches, and economic activity. Statistics in R.J. Rummel, Death by Government (Transaction Pub.: London, 1997).  The most useful set of tables, comparing higher and lower estimates can be found online: <www.mega.nu:8080/ampp/rummel/>

[6] Church Dogmatics, Vol. III part IV (German 467, English 410)

[7] This reaction in favor of the natural (human, or basic) rights conception of the rule of law inevitably favored courts as the principal moral police.  Again, contingent historical conditions have to be understood.  Beginning in the 1920s, the world witnessed the concentration of power in the executive branch, usually done in the name of national emergency.  In Germany, of course, the Enabling Act of 1933 transferred legislative power to the executive branch.  Similar transference took place in Italy, the Soviet Union, and Spain.  WWII only deepened national reliance upon the executive power - the one power that could roll up its sleeves and get things done.  Particularly important is the fact that the executive branch also tended to be the organ dominated by the party.  In Germany, the Gestapo and S.S. were executive instruments - the same was true of the Communist parties in the Soviet Union and Asia.  The Great Depression led to profound alterations of constitutional order in the United States as well.  We note that almost everywhere after WWII, the executive branch was cut down to size.  Germany, France, and Italy created relatively weak executive authority, for such, they believed, was a lesson of the 20th century.  The American polity had a relatively strong executive branch - but we should not overlook the fact that over the past 50 years the only American president who has enjoyed a successful second term in office is Dwight Eisenhower.

[8] West Virginia v Barnette (1943), 319 U.S. 624, 639.



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