MORAL FOUNDATIONS OF A FREE REPUBLICbriefly that ancient Greece had its enlightenment, that the law founded on the gods lost
its evidence, and that it became necessary to seek a deeper grounding for the law. And so
the thought arose that there must, in contrast to positive law, which can be unjust, be a
law that is derived from nature, from the being of man itself. This law, which would
constitute the corrective to positive law, must be found.
Nearer to us is the example of the double rupture that occurred in European con-
sciousness at the beginning of modernity and that compelled us to lay the foundation for
a new reflection on the content and source of the law. First, one broke out of the borders
of the European, Christian world with the discovery of America. One then encountered
peoples who did not belong to the Christian system of faith and law, which, prior to this,
was the source of law for everyone and gave law its form. There was no common legal
ground with these peoples. But were they then lawless, as some contended at the time
and as was reflected in their practice, or is there a law that transcends all legal systems,
joining and guiding men as men in their mutual relationships? In this context, Francisco
de Vitoria developed the already-latent idea of the ‘‘law of peoples,’’ of theius gentium—
wheregentesalso has the sense of heathen, of non-Christian. What is meant here is a law
that precedes the Christian form of law and that is to organize the just cooperation of all
peoples.
The second rupture in the Christian world took place within Christianity itself as a
result of the schism that divided the community of Christians into communities that
stood—at times hostilely—in opposition to one another. Once again, it was necessary to
develop a common law that precedes dogma, or at least to develop a legal minimum
whose principles would no longer be derived from faith, but rather from nature, from
man’s reason. Hugo Grotius, Samuel von Pufendorf, and others developed the idea of
natural law as a law of reason that institutes reason as the organ of communal lawmaking
beyond the limits of any particular faith.
Natural law—especially in the Catholic Church—remains the topos with which the
Church, in conversations with secular society as well as with other communities of faith,
appeals to a shared reason and searches for the foundations of a communication about
the ethical principles of the law in a secular, pluralistic society. But this instrument has
unfortunately become dull, and I don’t, therefore, want to use it to support my position
in this conversation. The idea of natural law presupposes a concept of nature in which
nature and reason interlock, in which nature itself is reasonable. With the triumph of
evolutionary theory, this view of nature has been demolished. Although there may be
instances of reasonable behavior in nature, nature, according to evolutionary theory, is,
as such, not rational: this is the diagnosis that has come to us and that today seems widely
incontrovertible.^3 Of the different dimensions of the concept of nature upon which the
former notion of natural law was based, only the one articulated by Ulpian (early third
centurya.d.), in the following well-known sentence, remains: ‘‘ius naturae est, quod na-
tura omnia animalia docet.’’^4 But this does not suffice for our questions, which are not
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