Karl Olivecrona

The Two Levels in Natural Law Thinking

Natural Law (Ius Naturae) can be understood as a system of norms and principles suitable for guiding the conduct of free agents. In Latin, such a system was called ius.1 In this sense we have, for example, ius naturae, ius canonicum, and the title doctor utriusque iuris. A particular norm or a set of norms, especially if created by an act of legislation, was called lex, a law. Although lex could also be used in the sense of a system of law, Suárez, who discussed these words and concepts with admirable clarity, preferred to reserve lex for precepts from a superior which command or forbid and have obligatory force.2 What the heading asks is whether there could be a Natural Law (a system of norms and principles guiding human conduct) without leges, that is, without commands or prohibitions with obligatory force, and in that sense ‘lawless’. Still, the heading has a paradoxical air, and to prevent confusion it is probably best to leave behind the eye-catching formulation and instead think in terms of two radically distinct conceptions, or two levels, within the kind of natural law theory which was proposed in the major works of Grotius and Pufendorf. That there is such an important dualism in that kind of theory is the main thesis in the text to which the following notes are an introduction. The text is a translation of ‘Die zwei Schichten im naturrechtlichen Denken’ by Karl Olivecrona. Its main point is that in their doctrine of Natural Law the two authors had little to say about the law of nature in the sense of a set of divine imperatives. They did not refer to that law when explaining what it is that belongs to a person in the state of nature, nor did they do so when explaining the nature of injury, of property, of contracts, or when discussing the consequences of transgressions—and their views on these matters made up the core of their Natural Law doctrine. His account, which explains (2010) 1(2) Jurisprudence 197–224