normative infallibility.54 It was during the 18th Century that legal scholars first began to doubt the status of Roman law as ratio scripta,55 and reshape the doctrine of sources in a modern direction and to eventually bring about a shift in the theory of legitimacy from scholastic, dogmatic rationality to positivistic voluntarism, or what is also called the will-theory of law.56 Despite the undeniable authority of Roman law (ratio scripta) in mediaeval legal theory, there still existed problems concerning the practical relationship between natural law and its subcategories. These problems concerned the inherent ambiguities of the normative hierarchy of sources, and remained unsolved for some time. Anticipating events: According to Jan Schröder, 16th and early17th Century legal theory made no real distinction between natural law and positive law. In fact, the two systems were identified with one another. However, the theory of natural law contained inconsistencies, for while positive law was defined as being a privation of the perfect law of nature, and thus hierarchically inferior as well as being causally posterior to natural law, natural law as such contained little more material law than the Decalogue and a few general principles of Roman law. Hence, natural law constituted a system of law full of gaps in need of material supplementation.57 But how can perfection be in need of completion and supplementation? Logically speaking, how can the premiss of an argument be in need of supplementation supplied by minor premisses and conclusions? In mediaeval legal theory similar problems manifested themselves incessantly, for instance, mediaeval legal theory identified natural law with what ultimately were positive systems of law with one another, namely the Bible and Roman law. In addition, natural law proper and p a r t v i i , c h a p t e r 1 576 54 Ibid., p. 35. 55 Coing, Privatrecht 1, pp. 67-69 and 72. 56 Olivecrona, Rättsordningen, pp. 105-112;Wieacker, History, p. 35; Kaufmann, Rechtsphilosophie, pp. 52-59. 57 Natural law in the early modernity: Schröder, Recht alsWissenschaft, pp. 9-10, 100, and 102. Natural law according to St Thomas Aquinas, see Schlosser, Grundzüge, pp. 7980.
RkJQdWJsaXNoZXIy MjYyNDk=