Such a metaphysical or religious relation is included in the idea of justice which for many centuries has been predominant in the Western world. It is the idea of jus naturale or lex naturae in which the two main lines of our cultural tradition the Christian and the Greek heritage are combined in a synthesis of exceptional power. For more than two thousand years the idea of lex naturae or jus naturale has been the basic conception within the European understanding of justice and one of the pillars of European civilisation. Its origin is pre-Socratic Greece. Solon the great law-giver of Athens pronounced it as the norm of his legislative activity. To him as well as to his successors the idea of the ϕύσει δίκαιον translated by the Roman Stoics into lex naturae was intimately and inseparably connected with the idea of divine justice. That which is ϕύσει δίκαιον is the opposite of all human arbitrariness as well as of mere opportunism. The ϕύσει δίκαιον the lex naturae carries with it a deeply religious emotional content from which the ethical demand for rigid objectivity is derived. Justice is something holy; is it backed by divine order divine necessity.

It was this religious basis of lex naturae of the “natural law” that made it possible for Christian thinkers of early times to incorporate this central idea of ancient civilisation into the Christian system of thought. What the Greeks called “nature” and what to them was the unity of divine and natural order had to be interpreted in Christian terms as the order of the Creator or the order of creation. In creating the world God has given to all things their order and by that their law. So and not otherwise the Creator wanted them to be. It is only within the last two or three decades that this idea of the divine order of creation or lex naturae has been suspected of being a form of natural theology which could not be acknowledged within a truly Christian conception of God man and world. But the idea of lex naturae or orders of creation in no way prejudices the question of natural theology. When the Church Fathers were speaking of lex naturae they connected it with that Logos in whom the whole world is created and in whom creation has its order that Logos who became flesh in Jesus Christ. The Son of God incarnate in Christ is the principle of the divine order of creation and therefore of lex naturae. That is to say the Christian Church never had a lex naturae conception other than a Christological one. Lex naturae was referred to that Creator of nature who revealed Himself in Christ Jesus.²

It must be admitted however that a certain relation to natural theology does exist in so far as these orders of creation and the principle of justice grounded in them as well as the moral law are not entirely unknown to natural man. Whilst the pagans do not know the Creator—or do not know Him properly as He can be known by His revelation in Christ—they still know something of His orders of His law. That is why they know something of justice although the depth of Christian justice remains hidden from them. Justice then is a topic where Christian and non-Christian thinking meet where they have a common ground without being identical. For this reason alone it is possible to have a civil order the justice of which can be judged by Christian as well as non-Christian citizens and an international order agreed upon by Christian as well as non-Christian nations. This was the reason why the theologians of the first centuries were able to accept the Stoic idea of lex naturae without hesitation and to incorporate it into Christian theology and juridical vocabulary. They could not do it however without giving it a new interpretation. They had to take it out of its Pantheistic context and place it within the theological structure of Biblical revelation. They applied to it the principle that the book of divine creation could be read truly only in the light of historical revelation. Before we enter this problem of the specifically Christian interpretation of justice I should like to follow the history of this idea to its end.

This history broadly speaking runs parallel to that of humanism which we tried to sketch in previous lectures. It is an almost ludicrous misunderstanding widespread as it is among the jurists on the Continent that Hugo Grotius is the creator of natural law. The truth is that with Hugo Grotius begins the decay of natural law which had been the ruling concept for two thousand years. For it was Grotius who for the first time tried to detach natural law from its religious metaphysical basis. It was his explicit opinion that natural law would be valid even if there were no God because it was rooted in reason. Now Grotius certainly was a great scholar but not so great a thinker; for otherwise he could not have failed to become aware of the contradiction which existed between his Christian idea of God and this idea of a reason and justice independent of God. But Grotius stands in the beginning of this movement the main tendency of which is to detach the idea of justice entirely from its theological or religious or metaphysical context. The history of this movement is marked by the same milestones as that of humanism: a religious foundation of the idea of justice without being Christian; a transcendental foundation without being religious; assertion of the idea of justice as such on purely naturalistic grounds; and finally the reinterpretation of justice as a merely fictitious idea forming an instrument of self-preservation. In that manner the idea of justice is dissolved and the end is an ethical nihilism proclaiming the will to power or the autonomy of the economic motive. “If the salt has lost its savour wherewith shall it be salted?” If the idea of justice is nothing but a conventional fiction it has lost its normative power. It may then be that justice is nothing but camouflage for power interests and that is its end.³

Thus it is not surprising that a totalitarian state draws the practical consequences of this result of the development of ideas. The totalitarian state exists ideally in the moment when the jus divinum is abolished when the state is sovereign in the sense of not being limited by any higher power when it can declare whatever it likes to be law when there are no rights of man which precede positive law and are valid whether positive law proclaims them or not. The totalitarian state is the practical consequence of the positivist philosophy of law. The positivist conception of law has done away theoretically with the idea of justice the totalitarian state does so practically in ridiculing the jus divinum and abolishing the rights of man.

The Western world being surprised and shocked by the rise of totalitarianism has however little justification for complaining or passing judgment on this latest phase of our modern history because for many generations it has helped to prepare it. It has done so in a double fashion. First as we have just seen by a gradual process of detaching the conception of justice from its religious basis it has made justice a mere conventional fiction of society and politics. This positivist conception of justice— this negation of the jus divinum—was certainly not a speciality of those countries which later on became totalitarian.⁴ England as well as France and Switzerland has played its part in this fatal European development of ideas. It was not seen that if there is no jus divinum there is no limit to the sovereignty of the state there are no rights which the state has to protect but only rights which the state may give or take. It was through the general blindness of the positivist era that the treasures of the Christian tradition immanent in our social structure were lost. It is this positivist philosophy which has prepared the totalitarian state. By the same token it is the totalitarian state carrying the positivist philosophy to its conclusion which makes us see again the true nature of this positivist philosophy on the one hand and the religious implication of the idea of justice on the other.

The second factor responsible for recent developments is not so much of a direct as of an indirect nature. The rationalistic form of natural law as it was worked out during the 17th and 18th centuries—that form of natural law which seems to be almost the only one known to the average jurist—is characterised by a one-sided identification of justice and equality. According to this justice is equality. The idea of equality was the dynamic element within newer political and social history. The idea of equality was the lever by which the ancien régime the feudal structure of society which had been based on inequality was thrown off its hinges. Equality was the great word of the French Revolution. It was with his Treatise on the Inequality of Man that Rousseau began his revolutionary critique of society. It is the idea of equality on which modern democracy following Rousseau is built. Equality is the by-name as well as the ethical element in the newer Communist-Socialist movement in the political emancipation of woman and in the social emancipation of youth. Equality in the name of justice! It is because equality and justice are identified that—as we said in the beginning—there has been so much more talk about justice in our time than in any other. What was meant was always equality.

Now it cannot be denied that there exists a close relation between justice and equality and that therefore the request for equality partakes to a high degree in that profound deeply ethical and religious justification which is necessarily connected with the idea of justice. On the other hand this one-sided identification of justice and equality leads to an individualistic conception of society which in its turn could not but ultimately result in a dissolution of all community. If men are essentially equal then they are essentially independent of each other every one having the essential elements of being in himself. The conception then is that the association of individuals is a merely external one brought about only by certain tasks which are too vast or too heavy for the individual. The egalitarian conception of man substitutes association for community. Association however is a merely arithmetical form of being together for co-operative purposes. It is thus that Rousseau understood community.⁵ Community to him is an association of a number of equal individuals for a certain purpose; it is not in any way an expression of man's nature but merely a consequence of the weakness of individual man and therefore something coming from outside. At the basis of this conception we find the idea of the self-contained individual the self-sufficient man. It is no mere coincidence that Robinson Crusoe alone on his island and yet capable of having a truly human existence is the hero of the great novel of this era. Here is the principle of individualism springing necessarily from the idea of essential equality. It is at this time that all kinds of human community begin to be understood from the point of view of the individual and therefore as something which is entirely under his control.

That is why the idea of equality with its concomitant individualism—meaning by that term the essential self-sufficiency of the individual—is the deepest cause of that decay of communal life of which we spoke in our last lecture. The idea of equality taken by itself dissolves all essential communion which is based on a primordial togetherness of men. The place of communal structure is usurped by inorganic association. The era of associations has begun not only in the sense that now innumerable different associations come into existence but also in the more significant sense that every kind of communion is understood from the point of view of association. This is so in the case of marriage of the family of the workshop of the state. The leading idea is Rousseau's idea of the contrat social. All community life which has “grown” all forms of communion which have their roots in non-rational grounds are—at least in thought—replaced by associations which are “made” and conceived of in terms of contract. Now Rousseau had already seen that the state being formed by the contrat social is necessarily in a condition of révolution permanente. A unity which is a mere association can dissolve at any moment. There is hardly a state which has proved the truth of Rousseau's idea more clearly than that which was the primary result of his conception in which Rousseau's political ideas were incorporated namely the French Republic. It is the thoroughly rationalised state and the main elements of this rationalisation are the ideas of equality association and contract. The chronic crisis of parliament and government is its most visible expression. The one-sided emphasis on equality in the conception of justice proves to be revolutionary and ultimately anarchical.

The same is true within the sphere of economics. The idea of equality here takes the concrete form of equal economic chances. At first it leads to the demand for free trade for non-interference with the free play of economic forces. It is the principle of unhampered economic liberalism—laissez faire. At the same time as the feudal structure of the state the guild-structure of economic life and all patriarchical tradition with its non-rational economic textures are broken down. Their place is taken by a completely competitive economy which means necessarily the belium omnium contra omnes the ruthless application of the struggle for life and the survival of the fittest the fittest meaning in this context the most cunning and the toughest. It is that kind of new economics as it was theoretically worked out in the system of the “Manchester school” of Ricardo and practically applied in the features of Frühkapitalismus. Even more immediate and broadly speaking perhaps more disastrous the principle of equality and the individualistic idea of the contrat social works itself out in the realm of marriage. Marriage also is now conceived of as a contrat social an association based on free-will having its foundation in certain purposes; therefore like every other association brought about by consent it can also be dissolved by consent. This individualistic conception of marriage issuing from the egalitarian conception of community therefore means here also the révolution permdhente which is nothing other than that well-known and much-discussed phenomenon of our time which we call the crisis of marriage. It is not so much sexual impulse and self-indulgence nor the general moral dissolution but it is this idea of the contrat social applied to marriage which is the real cause of the enormous increase of divorce. The one-sided emphasis on equality leading to the idea of contractual association has proved itself in this field as well as in others as a radical element of dissolution.

However the old paradox that les extrèmes se touchent becomes true here. Rousseau the father of egalitarian democracy and the father of the révolution permanente is also one of the originators of the totalitarian state. As a matter of fact he gave the idea of the totalitarian state a most accurate expression by formulating the principle that the citizen creating the democratic state does so by an aliénation totale des droits individueh.⁶ The democratic state is conceived in terms of the totalitarian state—which is one more proof by the way that totalitarianism is not identical with dictatorship. The totalitarian state is that state which exists by force of the aliénation totale des droits individuels. As Hitler's state was created by popular vote and parliamentary decision so is Rousseau's; but once created by popular vote it is sovereign total irresponsible. By the idea of aliénation totale the principle of “the sovereignty of the people” becomes the principle of “the sovereignty of the state” which means that the state once created democratically is all-powerful. The people may elect democratically a constituent body; that duly elected group may however create a constitution which is in effect the abolition of democracy. Or the people may elect a government which in its turn declares itself indissoluble and organises a totalitarian state. The principle of equality may lead to its extremest opposite which is the totalitarian state.

This is one road leading from equality to totalitarianism namely the formal political road. The other one is economic. The idea of equality can be understood not merely in the formal sense of equal chances that is in the sense of unlimited economic freedom; it can also be understood in a material sense meaning an actual equal share in the economic produce or goods. The same idea of equality which led to the French Revolution and produced modern democracy is also the source of modern Communism. It is at the root of the concepts of Proudhon Marx and Lenin.

That is not so paradoxical as it appears at first sight. If we follow the line of thought which led Marx to the construction of his Communist system the link between the two—extreme anarchic Liberalism and Communism—is obvious. Marx starts with the idea that man has lost his independence by the division of labour which made one man dependent on the other.⁷ Division of labour however produced the capitalist system. Therefore we have to reverse capitalism and with it the division of labour in order to give man back his original freedom. It is a well-known fact that Marx conceived his Communism not as a form of state-structure but as the abolition or rather disappearance of the state in a classless society. He believed that the abolition of the class-system—which to him was identical with the abolition of capitalism—would make the state superfluous and would therefore automatically be followed by the disappearance of the state. His ideal was thoroughly individualistic based on a philosophy of absolute freedom as we shall see more clearly in our next lecture. But out of this individualism he developed his Communism as a means to that individual freedom.

Unfortunately his expectation did not materialise. The first successful Marxist revolution led to the creation of the first totalitarian state that of Soviet Russia which is not only the first but also the most consistent of all embodiments of the totalitarian principle. Quite contrary to Marx's own ideal dream it is the case that only a Communist state can be completely totalitarian and that all non-Communist totalitarian states including Hitler's are forms of dilettante or amateurish totalitarianism. Thus the riddle from which we started has been solved. The same epoch which has placed the idea of justice in the centre of interest has also produced that social structure which is the complete negation of all justice the totalitarian state. The clue to this riddle is a double one: the detachment of the idea of justice from the religious basis on the one hand and the identification of justice and equality on the other.

But how are these two elements secularism and egalitarianism related to each other? In trying to answer this question we turn again to the Christian idea of justice looking at it now from the point of view of content. We have seen that the Church had accepted and incorporated into its own thought the Greco-Roman idea of natural law lex naturae jus naturale. It did so by identifying nature with God's creation and the law of nature with God's order of creation. Now this incorporation also meant a transformation. That which from the time of the Fathers throughout the Middle Ages and the eras of the Reformation and of Orthodoxy was called and thought of under the name of jus naturale and lex naturae was not the same as Solon. Plato Aristotle and the Stoics had understood by these terms. The first difference refers to the basis itself. The Greco-Roman concept of lex naturae is of course pantheistic: nature is God and God is nature; therefore the law of nature is the law of God and the law of God is the law of nature. This pantheistic equation is of course dissolved in Christian thought. The idea of nature is one might say split into two parts: God the Creator and His creation with its God-given order. That is to say God is above the order of creation. Hence justice being immanent in this creation-order is not the highest not the ultimate principle; the highest ultimate principle is love. For God is Love in Himself He is not justice in Himself.⁸ Love is His own essence; justice however is His will as it refers to the order of His created world. That is why in Christian thought the idea of justice always takes second and never first place; there is an element of the preliminary in it. Just as the Gospel is higher than law love is higher than justice.

That does not mean that justice and law are two independent principles. Such a dualism would be insupportable to Christian thought. It is rather that justice is a manifestation of love. Justice is that love which is applied to order; love as it can be realised within order or structure or institution. The origin of all orders and hence also the origin of justice is like the origin of creation as such: it is God's Love. That is why for the Christian the service of justice and its orders is always a service out of love. The motive of the Christian can never be any other but love even where the rule of his action has to be justice. Justice derives from love; still it is not love in itself but different from love. The unity of origin does not remove the distinction in content just as the distinction in content does not remove the unity of origin.

The Christian knows that he has to serve justice because it is the principle of God's order; at the same time he knows that this service of justice is not an ultimate and that respect for justice is never sufficient as motive. This place is reserved to love. With the drawing of this distinction there is already established an enormous difference between the ancient and the Christian ideas of justice. For the former justice is the highest the unconditioned ideal and service rendered to the orders of justice is the supreme task of his life. He is incapable of conceiving anything which surpasses and transcends the idea of the just order of the world. Because his God is not above the world-order his ethics cannot rise above that principle which is the principle of ethical order namely justice. He does not know the God of love therefore he does not know that love which is above justice. The Christian however stands in relation to these orders of justice in the same way as he stands within this earthly existence as such namely as one who is looking forward to a better country that is a heavenly one to the city “whose builder and maker is God”.⁹ The Christian knows that above the demands of justice are always those of love—that he should not merely treat his neighbour as a member of an order of justice but also and above all as a brother as a man who as a person called by God is more than any order of justice. Therefore he will try—and never cease to try—to bring into the orders of justice an element which is more than justice although he knows that this love surpassing justice can never fit into an order and can never be expressed in terms of order and law but only in terms of personal relationship.

The second difference concerns the content of the idea of justice and that means its relation to the idea of equality. In the Christian idea of justice also equality has its supreme importance. All men are created by God equally in His image. They all share in this original dignity of person conferred by God. They all have the same essential rights based on this human dignity of God's creation. In this affirmation of equality before God and of these original God-created rights the Christian doctrine of justice comes close to the Stoic one. All the same there is a distinction between the two of no small importance. The Christian idea of rights in distinction to the Stoic has its reference exclusively to man and never to God. Man has no rights over against God being His creature and property; he lives entirely from God's grace and mercy. Rights he has only in so far as God gives them. Therefore the rights of man are under the same reservation which applies to the whole sphere of justice. They are always limited by the unconditional imperative of love. The Roman idea fiat justitia pereat mundus is unthinkable within the Christian context.

But above all the Christian idea of justice is different from that of antiquity in that it gives to the element of inequality or unlikeness its due place alongside that of equality. God has created all equally in His image but He has not created them alike; on the contrary He has created each one different from all the rest with his own individuality. This corresponds to the personalism of the Biblical anthropology. The human personality is based on the personal call of God. That means that everyone is created in a unique act of creation and therefore not according to a general pattern but as a unique individuality. While the philosophers say: principium individuationis est materia the Bible says: principium individuationis est voluntas dei creatoris. The differences between human beings are therefore not irrelevant casual immaterial but just as much God's will and creation as the equality of personal dignity.

The elements of equality and unlikeness however do not stand on the same level. In Christ Jesus all differences and therefore all individuality become irrelevant. “There is neither Jew nor Greek there is neither bond nor free there is neither male nor female: for ye are all one in Christ Jesus.”¹⁰ This is the eschatological and therefore the final point of view. It is within this earthly preliminary existence that these differences are to be acknowledged and taken seriously. It is here that the preliminary principle of justice is valid. There shall be a time when justice gives way to love when the law shall be superseded when all the earthly conditions and limitations shall no longer exist. Then the individual differences will play no rôle but till then they have to be acknowledged as God's will for this earthly existence. God has given to every one his own “face”; that is why unlikeness comes into the idea of justice.

Of course the fact of the unlikeness of man was not unknown to the philosophers of antiquity but from this fact they drew conclusions which have to be repudiated from the point of view of Biblical thought. They drew one of two conclusions. In older Greek philosophy as represented by Plato and Aristotle the unlikeness of man is the foundation of a different claim. The unlikeness is primarily understood as a different participation in reason. Greeks have more reason than the barbarians; men have more reason than women; the slaves have none at all. They have to be treated accordingly; that means that the difference of men limits their equality of dignity and rights. The later Stoics have another view. Their conception of man is dominated by the idea of equality and equal dignity in such a measure that they have no interest at all in unlikeness. It seems to them something irrelevant casual not worth taking seriously. That is to say the principle of equality encroaches upon unlikeness. It is the exact reverse of the older view.

In Christian thought however the two elements of equality and unlikeness are not in competition with each other and do not limit each other because they are on a different plane. Men are equal in their relation to God and therefore in their dignity. They are unlike in their individuality and therefore in their function in the created world. There is but one and the same dignity for all just as theirs is only one and the same destiny whether they are men or women children or adults black or white whether they are strong or weak intelligent or dull. Their final destiny being the same their personal dignity cannot but be the same. All the same the individual differences are not negligible. What God has created cannot be irrelevant or negligible. The difference of individuality involves a difference of the function within society.

Finally the two elements—equality and unlikeness equal dignity and different function—are combined in such a way that both get their full expression in the Christian idea of communion. Because men are different from each other they are also dependent on each other. Man needs woman in order to be entirely man; woman needs man in order to be entirely woman. This unlikeness points towards mutual completion and co-operation. Individuals are different like the limbs of the body each one having its own function for which it is fitted by its individuality. The difference of function necessarily creates a somewhat hierarchical order in service which again rests on the difference of individuality. According to his make-up the one is fit for a subordinate the other for a superior position the one for a more extraverted the other for a more intraverted function. In this way the function of woman in marriage and family is entirely different from that of man and the function of the children entirely different from that of the parents. This difference or unlikeness in kind and function is exactly the unity of the family as a community. It is so because this difference in no ways encroaches upon the equal dignity. Functional subordination has nothing whatever to do with lesser dignity or person. Society is thought of as a community of unlike individuals who are bound to each other by the necessity of mutual completion and united by mutual respect for their equal dignity. We might call this idea an organic conception of society but in doing so we must distinguish it clearly from that conception of organic unity which we find in a certain Romantic philosophy. For this Romantic organology lacks that element which is decisive within the Christian understanding of society namely equality of personal dignity. Within Romantic thought the person is subordinated to the social whole by some kind of mystical principle of a Gesamtpersönlichkeit. The Romantic conception is totalitarian or collectivist robbing human personality of its finality.

This then is the unique character of the Christian idea of society and of justice: that it combines the two principal elements of equality and unlikeness which everywhere else are in conflict with each other. It is this combination of the transcendental and the psychological of the personal and the functional aspect which gives the Christian idea of justice a flexibility a dialectical subtlety which no other has. It is neither egalitarian nor authoritarian it is organic and nonethe less spiritual. It combines the naturalistic evaluation of different individuality and functional subordination with the most unconditional acknowledgment of the finality of every person. Now this combination of elements and therefore this idea of justice which excludes both individualism and collectivism authoritarianism and egalitarianism is essentially and exclusively Christian. It is the Christian conception of divine creation—creation by the individual call of God to the universal destiny of all—which makes this possible and necessary. Apart from its basis in Christianity this combination is possible only as a matter of chance without any inner necessity.

That is why the progressive estrangement of modern society from Christian thinking inevitably entailed the consequences which we have seen. It created first an individualistic and egalitarian liberalism which led to latent or open anarchy. This evoked the reaction of collectivism which by destroying human personality destroyed the foundation of justice in the totalitarian dictatorship. Without Christian faith and Christian understanding of justice the world faces therefore a fatal alternative: either humanity tries to return to or to preserve an individualistic liberalism defending the rights of man but leading to the destruction of community or it goes on along the road of totalitarian collectivism organising community by the complete effacement of personality. There is a middle road namely the combination of personal finality and functional structure which derives its inner coherence entirely and exclusively from the Christian faith or to be more exact from the Christian conception of justice based in that of creation. By this Christian conception of justice personal life is the supreme value and is to be defended against all totalitarian collectivist encroachments. On the other hand this highest evaluation of individual personality does not lead to an individualism which has no understanding of essential social unity. The true Christian faith does hold the key to the solution of the social problems of our time so far as there is any solution within this smful world. The question is whether humanity will use this key or whether it prefers to continue in the direction of recent centuries to its utter ruin.