Joseph Cardinal Höffner CHRISTIAN SOCIAL ... - Ordo Socialis

tive law, and that, on the other hand, every positive law, even the vilest one, is just - two fateful
conclusions for both man and society, as recent history has confirmed. Legal positivisms,
Gustav Radbruch wrote in 1948, has „rendered German jurisprudence and administration of
justice defenseless against such great cruelty and caprice.“ Thus, „the idea of a transstatutory
law, measured by which even positive laws could appear as statutory injustice, has powerfully
risen again after a century of juristic positivism.“ 8 Pius XII, however stated on November 13.
1949 before the Sacred Roman Rota that „the mere fact that something has been declared as a
binding norm of the state by a legislative power is not in and of itself sufficient to make it
just...The totalitarian state with its anti-Christian imprint first had to come, that state which in
principle or, at least, in that fact burst every restraint imposed by the supreme divine law, in
order that the true face of legal positivism be unmasked before the world...We have all been
witnesses to how some who acted according to this law have been called to account before
human justice...It has also been established how on the basis of the principle of legal positivism
these trials would have had to end with just as many acquittals...The accused were, so to
speak, covered by the law in force.
Many paid attention when Max Horkheimer referred in 1970 to the „harmonistic illusion“ of
positivism which excludes „ a view of the beyond.“ „Positivism,“ he writes, „finds no authority
transcending man that distinguishes between the readiness to help and lust for profit, kindness
and cruelty, avarice and self-surrender.“ There is no logically compelling justification for
why I should not hate if I do not thereby incur any disadvantages in social life.“ 9
3. Related to legal positivism is legal sociologism, which does indeed recognize that in different
cultural areas there are general conceptions of law that positive law may not contradict,
but which then affirms that these conceptions of law are neither immutable or universally
valid, but tied to the „total framework of a given culture.“ As the „natural law doctrine of
modern times,“ sociology has allegedly proved that the intrinsically relative notions of law
seemed absolute, i.e. like natural law, to the people of a cultural area who were no longer conscious
of the relative character of these norms. Thus, for example, Arnold Gehlen explains
that there is „a structure of consciousness that has arisen historically, in the sense of a genuine
transformation, whose conditionedness and genesis are hidden from us.“ In this sense, a society
„that has not yet lost the strength of its traditions also experiences its moral and social
norms as natural, although a few scholars may know how infinitely different in space and
time such norms have been...In general, the natural is the self-evident, and the latter is what
has become self-evident, but its having become so, is hidden from our consciousness.“ We
thus experience pederasty as unnatural, for example, „because it does not belong to the norms
of our society, as it did in ancient Greece,“ 10 though here it is to be observed that sexual practices
with children were in no way recognized as a general norm among the Greeks.
Today even some Catholic moral theologians who have a disturbed relation to metaphysics
affirm that there are no intrinsically evil actions. As ethics in general, so social ethics id allegedly
nothing but an evaluation and therefore subject to human sovereignty. It depends on the
motives, and here the weighing of goods plays an important role. „Morality“ writes Wilhelm
Korff,“ for example, „is an artificial product of human reason, invented and implemented by
man for man. It shares this reason with all other productions of man: with language, of which
no one would affirm that it is an immediate growth of nature; with interpretation and theories
about our world and its meaning; and finally, with technical creations from the Stone Age
chisel to the computer. This is not to deny that all these things have their natural presupposi-
8 G. Radbruch, Vorschule der Rechtsphilosophie. Göttingen 1948, S. 108 f.
9 Max Horkheimer, Die Sehnsucht nach dem ganz Anderen. Hamburg 1970, S. 60 f.
10 A. Gehlen, Urmensch und Spätkultur. Bonn 1956, S. 116 f.
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