Many posts on this blog have made mention of two outstanding Germans in regards to the place of the natural law in Germany. These Germans were Gustav Radbruch and Günter Hirsch, both of whom emphasized the importance of the natural law in the interpretation and application of statutory law. The later, while President of the German Federal Supreme Court of Justice, even said that “there is a higher law than the written law.” That was in 2002.
The natural law functioning as a restraint on positive law became an issue of worldwide concern after the cataclysm of World War II. Not just during the War, but throughout the middle decades of the twentieth century the lawless and murderous behavior of totalitarian states spread darkness over the earth. Perhaps you are familiar with the leading three countries in this category, all socialist or communist in nature.1
A statement made in 2009 by another excellent German legal and religious leader, Gerhard Robbers, clarifies the situation for us. Perhaps it extends a measure of hope pursuing the very slow legal process against our parents and their children in the courts.
There is an internal hierarchy of norms, Robbers wrote in “The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in Germany“:
“Within the system of federal law—and similarly within the framework of state (Land) law—the hierarchy of norms begins at its top with the Constitution.
“(1) The Constitution is the highest ranking norm with which all other norms must conform.
“There is some debate where there is something like natural law or “super-positive” law following from the nature of human beings, the will of God or perhaps from human culture to which the Constitution itself would have to conform. In a very early decision the Federal Constitution Court has ruled that even if any such super-positive law should exist its practical legal relevance would depend on a positive decision by the Constitution to include any of such rules into the framework of positive, binding constitutional law.” (p. 14, emphasis added.)
We can see clearly which way the debate has gone in German law in terms of our appeals that we must obey God rather than man, and that in doing so we are loving and not hating our children.2
For us, the issue of the simple denial of stated Constitutional rights has been more pressing. Alleged here to be “the highest ranking norm with which all others must conform,” the courts, the Jugendamt, and the state behind both have consistently acted in their treatment of us almost as though the Basic Law did not exist. Thus they can and they have violated the various and profound inviolable rights it enumerates.
For us, the status of the natural law in Germany has been theoretical or hoped for. Perhaps it will be realized one day. So we do not know whether the natural law will be as insubstantial as a shadow on our cases or whether it will be given its supreme status as the ultimate arbiter of good and evil. Then it would restrain immoral laws, or at least their application to moral people.
- It mattered not whether that ruler was Adolf Hitler in Germany, Joseph Stalin in Russia, Mao Tse-Tung in China or any law-making body anywhere in the world — the law was the law. Even the memory that there were fundamental human rights that no government could take away was fading from the world. The horrifying atrocities committed by such twentieth-century dictators revived world interest in a standard higher than positive law, than man’s law. If rulers could command whatever they wished without the restraints and limits of natural law and inalienable rights then great evils could be unleashed upon the world. This is what happened, and it was all done legally, for the lawless are ever concerned with legalities. Those dictatorships were the triumph of the legal philosophy of positive law. It states that the law is simply “the command of the ruler” with no restraint possible or even conceivable. See John Lynch, “Natural Law,” Encarta Encyclopedia 2000. ↩
- Acts 5:29 says, “But Peter and the apostles answered, “We must obey God rather than men.” Proverbs 13:24 says, “Whoever spares the rod hates his son, but he who loves him is diligent to discipline him.” ↩