Further, like him, I believe neither in the grotesque jus naturae, i.e. quod natura ipsa omnia animalia docuit, nor in a jus gentium, in a right which, as the Roman jurists defined it, is recognized as a natural law of reason by the universal agreement of all nations.
It is not necessary to have gone deeply into zoology and physiology in order to see that we can no longer use the animal world as a criterion for the setting up of ethical standards, even if one is not disposed to go so far as Rokitansky in pronouncing protoplasma, with its aggressive character, an unrighteous and evil principle.
As to a common code of right for all nations, such a belief was a delusion which might hold good in the antique world; in modern times when the ethnographical horizon has been extended, and the customs of barbarous races drawn upon for comparison, these laws can no longer be recognized as a product of nature, but only as a product of culture common to the more advanced nations.
As regards all this, therefore, I am in agreement with Ihering; I am also substantially in agreement with him when he asserts that there have been times without any trace of ethical knowledge and ethical feeling; at any rate without anything of the kind that was commonly accepted.
Indeed I acknowledge unhesitatingly that this state of things continued even when larger communities under state government had been constituted. When Ihering, in support of this view, points to Greek mythology with its gods and goddesses destitute of moral thought and feeling, and maintains that, by the lives of the gods, the life of mankind in the period in which these myths took shape may be interpreted,[3] he does but use a method of proof which Aristotle has already employed in a similar manner in his Politics.[4] This also must therefore be conceded him, and we shall, on this ground, no longer deny that the earliest political laws supported by penal sanction were established without the help of any feeling of right founded upon moral insight. There are, therefore, no natural moral laws and legal precepts in the sense that they are given by nature herself, that they are innate; in this respect, Ihering’s views have our entire approval.
[5.] We have now to meet the second and far more important question: Do there exist truths concerning morality, taught by nature herself, and is there moral truth, independent of all ecclesiastical, political, in fact every kind of social authority? Is there a natural moral law which, in its nature, is universally and incontestably valid for men of every place and time, valid indeed for every kind of thinking and sentient being; and does the knowledge of it lie within the realm of our mental faculties? Here we are at the point where I join issue with Ihering. To this question, which Ihering answers in the negative, I return a decided affirmative. Which of us is here in the right our present inquiry into the natural sanction for law and morality will, I hope, make clear.
At any rate, the decision as to the former question, whatever Ihering[5] himself may think to the contrary, does not in any way prejudge the latter. Innate prejudices do exist; these are natural in the former sense, but they lack natural sanction; whether true or false, they possess no immediate validity. On the other hand, there are many propositions recognized after a natural manner, which are incontestably certain and have universal validity for all thinking beings, which, however, as, for example, the Pythagorean theorem are anything but innate, else the blissful first discoverer had never offered his hecatomb to the god.
[6.] In what has been said I have made it sufficiently evident how, when I speak of natural sanction, I understand the notion of sanction. Yet it will be well to linger a moment in order to exclude another inadequate view.
“Sanction” signifies “making fast.” Now a law may be fixed in a double sense:
(1) It may be fixed in the sense of becoming law, as when a proposed law receives validity by ratification on the part of the highest legislative authority.