Autor: Strauss, Leo

Buch: Natural Right and History

Titel: Natural Right and History

Stichwort: Naturrecht: Ursprung; Natur (Begriff der Unterscheidung) - Brauch, Sitten, Konvention; der rechte Weg (Vorfahren); Naturrecht - Autorität

Kurzinhalt: Prior to the discovery of nature, the characteristic behavior of any thing or any class of things was conceived of as its custom or its way... The emergence of the idea of natural right presupposes, therefore, the doubt of authority.

Textausschnitt: 82b The purport of the discovery of nature cannot be grasped if one understands by nature "the totality of phenomena." For the discovery of nature consists precisely in the splitting-up of that totality into phenomena which are natural and phenomena which are not natural: "nature" is a term of distinction. Prior to the discovery of nature, the characteristic behavior of any thing or any class of things was conceived of as its custom or its way. That is to say, no fundamental distinction was made between customs or ways which are always and everywhere the same and customs or ways which differ from tribe to tribe. Barking and wagging the tail is the way of dogs, menstruation is the way of women, the crazy things done by madmen are the way of madmen, just as not eating pork is the way of Jews and not drinking wine is the way of Moslems. "Custom" or "way" is the prephilosophic equivalent of "nature." (Fs)

83a While every thing or every class of things has its custom or way, there is a particular custom or way which is of paramount importance: "our" way, the way of "us" living "here," the way of life of the independent group to which a man belongs. We may call it the "paramount" custom or way. Not all members of the group remain always in that way, but they mostly return to it if they are properly reminded of it: the paramount way is the right path. Its rightness is guaranteed by its oldness: "There is a sort of presumption against novelty, drawn out of a deep consideration of human nature and human affairs; and the maxim of jurisprudence is well laid down, Vetustas pro lege semper habetur." But not everything old everywhere is right. "Our" way is the right way because it is both old and "our own" or because it is both "home-bred and prescriptive."1 Just as "old and one's own" originally was identical with right or good, so "new and strange" originally stood for bad. The notion connecting "old" and "one's own" is "ancestral." Prephilosophic life is characterized by the primeval identification of the good with the ancestral. Therefore, the right way necessarily implies thoughts about the ancestors and hence about the first things simply.2 (Fs)

83b For one cannot reasonably identify the good with the ancestral if one does not assume that the ancestors were absolutely superior to "us," and this means that they were superior to all ordinary mortals; one is driven to believe that the ancestors, or those who established the ancestral way, were gods or sons of gods or at least "dwelling near the gods." The identification of the good with the ancestral leads to the view that the right way was established by gods or sons of gods or pupils of gods: the right way must be a divine law. Seeing that the ancestors are ancestors of a distinct group, one is led to believe that there is a variety of divine laws or codes, each of which is the work of a divine or semidivine being.1 (Fs)

84a Originally, the questions concerning the first things and the right way are answered before they are raised. They are answered by authority. For authority as the right of human beings to be obeyed is essentially derivative from law, and law is originally nothing other than the way of life of the community. The first things and the right way cannot become questionable or the object of a quest, or philosophy cannot emerge, or nature cannot be discovered, if authority as such is not doubted or as long as at least any general statement of any being whatsoever is accepted on trust.1 The emergence of the idea of natural right presupposes, therefore, the doubt of authority. (Fs)