For all men, good and true are the same, but pleasant differs from one man to another. ~ Democritus

Valentin Tomberg wrote about the nature of law in his two doctoral dissertations, Foundations of International Law as Humanity’s Law and Degeneration and Regeneration of Jurisprudence. Published just at the end of World War II when its devastation was fresh in his mind, Tomberg’s goal was to develop the foundation of “humanity’s law” which would supersede the laws of states. The first section of his thesis was devoted to the philosophical and metaphysical foundations of his task. This review is intended to serve as a guide to that section. It can be regarded as a primer in epistemology that can be applied to the intellectual revival of all the humanities and social sciences, not just of jurisprudence.

“International law” is the translation of ius inter gentes. This definition is important because Tomberg rejects the notion that it refers to a law between states, for their benefit rather than for humanity. Hence, “humanity’s law” is to be understood by the term “international law.” Since international law is humanity’s law, it must be linked to the fullness of human culture:

• Religion
• Philosophy
• Ethics
• Science

In this view, therefore, the scientific investigation of law cannot be separated from ethical, philosophical, and religious concerns. Put differently, the so-called fact-value distinction is dubious. Attempts to deal with issues solely in political and economic terms, while ignoring the higher levels, can never be successful.

Once science is separated from morality, philosophy, and religion, it necessarily separates itself from logic, i.e., it tries to be free from judgment, conclusions, and abstract concepts, and ends up as study of concrete concepts alone. In other words, it eliminates the ideational in favour of the phenomenal. Tomberg ascribes this sort of thinking to children.

Method

Instead, Tomberg proposes a metaphysical approach. He says that the moral and truth content of an idea are persuasive by virtue of their inherent value. “An alert and objectively minded reader” will directly see—in an act of unmediated perception—the truth of the idea. Only that is ultimately persuasive, as proofs, arguments, and experiences are simply ineffective, as personal experience testifies.

Only this sort of knowledge is certain. Of course, this is a difficult teaching. In our time, it is assumed that the findings of science are universal, at least to those who take the trouble to learn it. Put differently, the presumption is that reason and evidence provide the only path to knowledge. Yet, this was not always so. The religious view accepts the reality of spiritual revelation as the highest form of knowledge. Hence, Tomberg relies on Plato’s three levels of acquiring knowledge:

• Episteme: Knowledge itself, direct insight into the essential meaning of an object of knowledge
• Dianoia: The most likely explanation arrived at through logical deduction
• Doxa: Opinion, based on the fragmentary facts of sense perceptions

His task, therefore, in the matter of international law, is to communicate this process of understanding to others, so that they will re-cognize what was pre-cognized. Opinions, possibilities, and insights are the three levels of acquiring knowledge. Conversely, ideals, ideas, and concepts are the three reverse levels of giving form to knowledge.

• Ideals. This is the spiritual-moral content of knowledge in consciousness.
• Ideas: The ideal becomes idea when it becomes the creative and determining centre of a whole organism of thoughts.
• Concepts: The idea enters the realm of sense perception and has a formative influence on the multiplicity of manifestations.

Philosophical Realism

Aristotle, the philosophy of Medieval realism, and even modern philosophical idealism continue Plato’s insights. Despite minor differences in branches and schools, the fundamental point is that ideas are realities.

Unfortunately, this results in a practical dilemma. Spiritual vision is the ability to “see” ideas beyond their manifestation in the world of sense; Tomberg calls this “idea-sightedness”. Yet its opposite, “idea-blindness”, i.e., the inability to see ideas, is common today. This is the view of systems like positivism, nominalism, empiricism, as well as various political movements. If there is no higher ideal to things, then the result is mob rule or the rule of the stronger over the weaker. Technology then accepts no restrictions on its innovations. The results are war, revolution, and devastation.

The spiritually blind simply cannot see the spiritual-moral link of their actions in the world. Argument and polemics as totally ineffective. The seer sees a living entity where the blind sees only a shadow, yet the living entity encompasses the shadow.

In other fields, such as music for example, the talented guide its development and the tone deaf are excluded. In mathematics, those who can follow a proof stay in the field, and those who can’t are easily weeded out. However, the humanities are guided mainly by people blind to ideas. In particular, Tomberg will investigate jurisprudence – one of the humanities – from the perspective of idea-sightedness.

There are three ways of experiencing the reality of the ideas, corresponding to Plato’s three stages of knowledge.

• Universale post res: This is the concept abstracted from the manifoldness of manifestation.
• Universale in rebus: This is the objective reality of the idea revealed by these manifestations. The idea is not fully manifested due to privation.
• Universale ante res. An ideal is manifested partially or not at all. The ideal precedes manifestation as its archetype.

World Conceptions

One often hears said, “The facts speak for themselves.” On the contrary, the mass of empirical experiences requires an orienting principle to make sense of them. This is one’s world conception, or a person’s general conscious attitude toward the world.

Tomberg uses this example of a world conception: “The dogma that the past of humankind was more animal-like than the present, and that the present state is due to progress.” If such a view is applied to international law, the assumption is that humankind started with small clans, then grouped into tribes, and ultimately into nations. Wars of extermination were at the beginning, and the idea of treaties, then trade, were gradually developed. This conception assumes that the higher can result from the lower.

The contrary premise is this: “The wild, gross and animal-like is not the starting point of an ascending development, but the terminal point of a descending development, i.e., the final result of degeneration.” Historically, we can note that great civilisations existed simultaneously with more primitive peoples. Moreover, these higher civilisations agreed that there had previously existed a higher spiritual level, e.g., the Greek Golden Age or the Indian Satya Yuga.

The point is that one’s world conception determines the means and objectives of an investigation. Oftentimes, this conception is implicit and may even have been adopted unconsciously. So-called scientific objectivity does not consist in having no such conception. Rather, it requires one’s conception to be placed in the foreground. Hence, Tomberg lists the following seven premises as the foundation of his world conception:

1. The world is not a blind mechanical process, but is a creation of the highest consciousness.
2. The world is an arena in which conscious beings may unfold their freedom.
3. These beings have been given the option of opposition toward the creator and creation, so that good and evil are objective realities.
4. The conscious beings are linked in brotherhood, due to their common origin and destiny.
5. Their common destiny is salvation.
6. Because of the past misuse of freedom, there is evil in the conscious and physical organisation of mankind in addition to the sense of salvation and natural health.
7. The hope for deliverance from this state of man and humanity is contained in the salvation truths of Christendom.

The Philosophy of Law

Before dealing with the foundations of international law, it is first necessary to gain an understanding of the foundations of law in general. There are three levels of law corresponding to the three levels of knowledge described by Plato:

• Divine Law: Divine law expresses the ideal of law, providing the objective and direction of law. Its virtue is Love.
• Natural Law: Natural law is the ordering effect of reason and morality among humans. Its virtue is Justice.
• Positive Law: Positive law is man-made, or legislative, law, intended to represent the degree of realized natural and divine law which is reasonable for a given stage of development. Its virtue is Prudence.

Thus one arrives at the ideal of law by introspection, at the idea of law by reasonable evaluation of experiences, and at the concept of law by knowing the facts of positive law. In practice, positive law is a mix of justice, legally meaningless rules, and injustice. Hence, jurisprudence cannot be limited to the study of positive law, but must study it from a higher viewpoint. Obviously, this requires its evaluation from the point of natural and divine law. Otherwise, the whole of law is reduced to utilitarianism and mere power. That would mean the end of any sense of justice.

Positive law that ignores natural and divine law depends solely on the will of those in power. Yet, a further decadence is possible if the forces and influences that guide this will are taken into consideration. Hence, biological and unconscious drives can be regarded as the primary sources of law. Then, Tomberg concludes, “ultimately, one could go so far as to understand the electromagnetic currencies created by material processes of the human organism as the source of and criterion for law.” In the 70 years since this thesis was written, there are indeed prominent public intellectuals who claim the human mind is nothing more than the result of electro-biological processes. Moreover, the threat of rule by artificial intelligence would even eliminate the human element from any conception of law.

Instead, a complete understanding of law must be based on three insights:

• The world is an ordered whole.
• The world order is of a moral nature.
• Mankind is called to arrange its own life in harmony with the moral world order.

The laws of the great civilisations, such as the Laws of Manu, the Zendavesta, of the laws in the Books of Moses all deal with the spiritual and physical well-being of humanity and mutual benevolence. This reached its apex in Christianity which did not abolish the law, but fulfilled it, i.e., it revealed the law’s true nature as the ideal, of Love. This is the true and sole objective of all law. Responsible people should agree that:

• It is preferable to live in a state of solidarity rather than fragmentation.
• It is more humane for the stronger to serve the weaker.
• The respect and protection of spiritual cultural values reside on a higher level than plebeian and revolutionary degeneracies.

The Practice of Law

The ideal of law is the intuition of the moral world order and the idea of law is the ordering of human society according to justice. However, the actual practice of needs to take into account what is reasonable for all. Hence, positive law has three conditions:

• It must be necessary or useful for the general welfare
• It must not contradict any obligations of a superior nature
• It must physically and morally be possible

The first condition expresses the purpose of positive law. The second condition asserts that the positive law must be oriented toward justice and love. The third condition requires the virtue of Prudence, that is, the law must be Reasonable in the sense that the demands on the receiving party do not exceed his abilities. So, what is reasonable at one time for one nation may be different in other circumstances. The cost of enforcing a law may exceed any moral benefits arising from it. The Ethical State will provide the atmosphere for individual freedom and personal fulfilment. But the degree of that depends on the emotional and spiritual maturity of a people. For Christian-European humanity, Tomberg asserts this formula to be adequate:

Law is freedom depending on equality and on obligations resulting from generally acknowledged spiritual and other values.

This balances personal freedom, as the foundation for private law, with an obligation towards superior values, as the foundation for public law. This relationship can be visualised by a cross.

• Private law orders the relationship between individuals with each other. It can be represented by a horizontal bar.
• Public law is based on the principle of superordination, which obligates according to graduated values. This is represented by a vertical bar.

International Law

The application of the philosophy of law specifically to international law is the final preparatory stage before the actual discussion of jurisprudence. The fundamental point is that the nature of law is immutable, both for domestic law and for international law, even if its application may be different. International law, as humanity’s law, is inconceivable without the idea of the fraternal unity of humanity. The notion of human value is based on morality, not on biology. Humanity based on biological units cannot have rights and obligations; it can only have needs and the desire for their satisfaction.

The idea of humanity is in opposition to the fragmentation of humanity. It revelation is peace. Otherwise, there is the idea of bestiality, with struggle and the fight for survival regarded as fundamental. Such a peace is not simply a state of rest, but rather the unfolding of humanity’s creative abilities. And creativity requites love.

Tomberg illustrates this with a musical example. One cannot create a piece of music by having feelings of hate, contempt, and indifference, but only by loving music. Such is the case in all areas of human life and culture. This leads to the understanding that the world was likewise created by love, not the utter indifference required by a materialistic world conception. Indifference is uncreative passivity and hate is destructive activity.

The three stages of international law may be summed up in the Christmas message:

Glory to God in the highest,
And on earth peace,
Among people of good will.

These verses represent the following formulae, respectively:

• The ideal of the unity of mankind.
• The idea of the order of humanity.
• The true concept of international law.

The law creating source of positive law is the good will, i.e., the will that takes its direction from the ideal and the idea. The challenge then is to determine what is reasonable to expect from the good will of all people at their present level of consciousness to realize the content of the idea of justice and the ideal of love. That is the task of the jurisprudence of international law.