TY - JOUR
AU - Smith, Steven D
AB - Jurists and scholars today—those interested in “original meaning,” for example—routinely raise questions and make claims about law from the founding period, and from the nineteenth century. But did lawyers from those earlier times understand law–what law is, so to speak—in the same ways that we do? In this highly readable and illuminating book, legal historian Stuart Banner shows how during the first century of the Republic’s existence, lawyers routinely resorted to something they thought of as “natural law.” Then, from about the end of the nineteenth century, natural law mostly disappeared. Why did that happen? Banner’s discussion of the “disappearance” question is illuminating as well–illuminating but also, in its final diagnosis, curiously unsatisfactory. There is something elusive here, it seems—something that Banner perceives but does not quite manage to pin down. I On first consideration, the story told by Banner seems straightforward, and compelling. At the Republic’s founding and for a century thereafter, lawyers and judges routinely invoked “natural law” in their arguments and decisions. Natural law, it was thought, informed the common law; common law reflected and implemented the natural law. Even enacted statutes were thought to be in furtherance of, and in some sense subject to, natural law. And then things changed. The advance of secularism and the accompanying separation of law from religion rendered natural law with its theistic overtones a suspect element in professional legal discourse. Written constitutions pushed legal thinking in a positivist direction. Proliferating law books and case reports—“crowd[ing] upon us like the pests of Egypt,” as one lawyer put it (121)—increasingly filled in the gaps that lawyers and judges had formerly negotiated by importing natural law. And the fact that natural law-sounding arguments could be offered on both sides of debates on central issues like property, women’s roles, and racial segregation left natural law looking like a deeply indeterminate and hence not very useful source of legal guidance. And so natural law lost its function, and its influence. “Natural law was almost universally accepted in the legal system in 1870,” Banner reports, “but it was almost completely gone by the early 20th century” (167). This sounds about right, on first consideration anyway. Readers might be surprised at how freely and frequently American jurists of an earlier period openly referred to and relied on natural law: Banner performs a valuable service by reminding or informing us of that fact. But the absence of natural law from professional discourse today seems evident enough. Or does it? On closer consideration, the story becomes more complicated. The foregoing description suggests a sort of swift and almost total evacuation: natural law pervaded ordinary legal discourse, implicitly and often explicitly– and then it withdrew. Disappeared, or at least quarantined itself in the private domain. Banner basically tells the story in that way. But he also offers plenty of evidence suggesting a more complex development—and a confounding one. Could it be that natural law has not been rejected so much as rebranded? Is natural law still very much with us—hiding in plain sight perhaps? But if so, what could account for this peculiar state of affairs? II The marginalization of natural law in the late nineteenth and early twentieth centuries, Banner explains, left a jurisprudential gap that came to be filled with “substitutes” (188). Closely considered, though, the more enduring substitutes1 can look like continuations—like something akin to the old natural law but persisting under different forms and guises. Thus, one of the more important and enduring “substitutes” for natural law was the emergence of Lochner-style “substantive due process” in constitutional law. Instead of interpreting away unacceptable restrictions on liberty or property in natural law terms, as they once had sometimes done, judges now would strike down the restrictions as violations of “due process.” And yet far from displacing natural law, Banner explains, state and federal due process clauses were viewed as incorporating that law. Even in the heyday of natural law it had been doubtful whether natural law could operate of its own force to invalidate an objectionable statute. Substantive due process got around the difficulty by providing a “textual hook” for the application of natural law. Using that “due process” hook, judges became even more aggressive in enforcing their notions of natural law limitations (206-209). As time passed, to be sure, lawyers and judges learned to avoid using a natural law vocabulary in this context (211). They may have been reacting to the savage mockery from eminent figures like Holmes, who parodied natural law as a “brooding ominpresence in the sky,” or Roscoe Pound, who ridiculed “Cloudcuckoo-town law” (220, 173). And yet even modern constitutional decisions in the substantive due process vein, in which the courts do dramatic and disruptive things with scarcely any support in the constitutional text, still look remarkably like older natural law jurisprudence.2 Another influential “substitute” for natural law, Banner explains, was the “classical legal orthodoxy,” sometimes described as “legal formalism,” associated with Christopher Columbus Langdell and Joseph Beale.3 The formalists proposed to treat law as a science, with the law library serving the function of the scientist’s laboratory; and they purported to find true rules or principles of law not in “nature” but rather in the reported cases themselves. Although this kind of formalism later became unpopular, it gave rise to pedagogical methods—in particular the use of casebooks and the Socratic interrogation of the cases by professors and students to discover the legal rules or principles—that persist to this day. (204) And yet the formalists could not simply equate the law with the cases. For one thing, the cases were often inconsistent with each other; so the legal “scientist” or scholar needed to sort through the cases critically to ascertain which cases were correctly articulating the law and which were misstating or deviating from it. And the cases themselves obviously could not perform that sorting out; the scholar would need to apply some independent standard or model to determine which cases were accurate statements of law and which were not. So, where would that standard or model come from? Whether they said so or not, it seemed that the formalists were still presupposing some sort of legal standard that was independent of the cases themselves.4 Some sort of … natural law? Holmes suggested as much when he mocked Langdell as “the greatest living theologian” (203). A third “substitute” for natural law—and the most important one, in Banner’s view—was the modern understanding of judicial decisions as judge-made “policy.” Rather than finding a law that is somehow given in nature, judges make law so as to further important public policies. Indeed, this is what judges had been doing all along, even when they said—and maybe even believed?—that they were finding the law (215-216). This is the common understanding of law today, Banner explains, and it is an understanding that he himself seemingly views as the correct one. Banner is surely right that the conceptions of law as policy and of judges as makers rather than finders of law have come to dominate modern legal thinking—at least in the academy, where these conceptions have come to seem virtually axiomatic. And yet this understanding encounters its own serious problems, as Banner occasionally acknowledges (with a puzzling apparent complacency). III For one thing, as Banner notes, “natural law lingers on in the voice lawyers and judges adopt in their professional lives” (246). Judges, for example, do not present themselves as making the law. On the contrary, even in cases in which no clear preexisting rules exist, judges insist that they are deciding cases in accordance with a law that is in some sense there, independent of the judges’ own opinions or policy preferences.5 So the judges may sift through an array of previously decided cases, accepting parts of those cases, restating other parts, discarding still other parts, trimming and extending, and seeking to combine and reconcile the various rulings and reasonings, all in a purported quest to discern “what the law is.” As Lon Fuller observed: [I]t is not too much to say that the judges are always ready to look behind the words of a precedent to what the previous court was trying to say, or to what it would have said if it could have foreseen the nature of the cases that were later to arise, or if its perception of the relevant factors in the case had been more acute. There is, then, a real sense in which the written words of the reported decisions are merely the gateway to something lying behind them that may be called, without any excess of poetic license, “unwritten law.”6 In this search for the law, judges may look not only to cases from their own jurisdiction but to cases from other states, even other nations. “Saskatchewan may cite a precedent from New South Wales,” Fuller noted. “Vermont may derive guidance from the law propounded by the judges of Arkansas, while the Queen’s Bench may find a decision of the Supreme Court of the United States persuasive …” Judges who thus habitually borrow legal wisdom back and forth across political boundaries “are apt to talk as if they were all working together in bringing to adequate expression a preexisting thing called “The Law.””7 Banner acknowledges such continuities of practice from an earlier “natural law” era to today. Some of these continuities he puts under the heading of “echoes” of natural law. (222) He explains, for example, that in the nineteenth century “perhaps the most common use of natural law … was to fill in gaps where positive law ran out.” Such gaps occur today as well, but now “we describe what judges do in such cases as interstitial lawmaking.” And yet “if one ignores the label and looks closely at what judges are doing, their method of deciding these cases is not all that different from the method that was once called natural law” (247). The question of retroactivity points to another striking feature of current practice that is very much like the older natural law approach—and very much unlike “lawmaking” of the sort that Banner says the courts are in fact doing.8 Thus, if a legislature makes law—forthrightly makes it—by enacting a statute, the statute’s application will typically be prospective: enforcement against actions or transactions that occurred before the statute was enacted would reflect at least a departure from fairness and possibly “due process,” and in the case of a criminal law would likely violate the Constitution’s prohibition on ex post facto laws. By contrast, if a court announces a previously undeclared rule, the rule will routinely be applied retroactively—on the assumption, it seems, that the court has not made a new law at all; it has merely declared “what the law is,” with the “is” being understood in a temporally expansive sense extending back into an indefinite past. This retroactive application will occur even when a court overrules an earlier decision or rule. The assumption, it seems, is that neither the earlier nor the present court made the rules they rely on. The courts, rather, have merely attempted to discern and articulate “what the law is.” So the current decision does not repeal an earlier legal rule, but instead corrects it; the decision suggests that the law has not actually changed, but only that the earlier court was mistaken in saying what the law was/is. While noting these awkward features of contemporary legal practice, Banner insists that judges who purport to be finding the law know “in their hearts” that this is not so—know that they are in reality making the law (246), In this respect he follows Ronald Dworkin, who accused judges of “a costly mendacity”9 in the way they routinely present the law as something that exists independent of their own political and philosophical convictions. But isn’t it just a bit presumptuous of an academic observer to pretend see into the judges’ hearts and know that they are routinely engaging in such duplicity? Banner finds the whole ostensibly deceptive practice “exceedingly strange” (246)—as indeed it would be if this is what judges are in fact doing. Banner also suggests that judges who purport to be finding or declaring some “preexisting thing called “The Law,” as Fuller put it, are dealing in “fictions” (244). Perhaps. But are the more seemingly respectable or positivistic sources often invoked to avoid reference to natural law any less fictitious? Where positive law appears to leave a question unresolved, a court will often purport to find an answer, Banner notes, by “discerning the will of the legislature in an indirect fashion” (248). But surely this unexpressed and indirect “will of the legislature” is as much a fiction as any “natural law” might be. Indeed, as I have argued elsewhere, there is a fictional quality even to the very notion of a multi-member legislature speaking with a unified voice in matters in which, realistically, many or most of the legislators likely paid little or no attention to a bill at all and hence have no idea what “the legislature” they supposedly constitute has said or intended.10 A similarly fictional dimension is apparent in constitutional interpretation that purports to be finding a meaning somehow put into the constitutional text by that exhilarating fiction of an original “We the People of the United States”—and a fortiori by constitutional interpretation that purports to find constantly updated meanings in a text that is somehow “living” and progressing even though its words remain the same.11 Banner is surely right that contemporary lawyers and judges do not openly appeal to natural law in the ways they did in the eighteenth and nineteenth centuries. Today, natural law is something that a judge is more likely to be accused of than to invoke.12 And yet … it seems that judges and lawyers routinely talk and act as if there were some sort of natural law that informs their arguments and decisions. So what are we to make of this confusing and paradoxical situation? IV We might begin by acknowledging that the “finding vs. making” dichotomy employed by Banner and others to describe the difference between older and more contemporary understandings of law, though perhaps usefully suggestive, is surely an oversimplification. Nineteenth century lawyers may have understood themselves to be in some sense “finding” law, as Banner emphasizes, but they did not suppose or pretend that the law in its specificity existed fully formulated in some ethereal codebook, needing only to be looked up and applied. (Although mocking critics sometimes revel in beating up on such a caricature.13) Reasoning, interpretation, construction were required: lawyers and judges knew this. Conversely, even when we say today that judges “make” law, or “legislate,” we understand that they are doing something quite different from what actual legislatures do. We know that there are extensive legal materials that judges are obligated to consult and work with, and that there are ways of using these legal materials that are professionally acceptable and other ways that are not. Both then and now, it seems, the actual process of judging was and is a complex combination of finding and making. The same is surely true of another common and related dichotomy—between law as a product of “reason” and law as product of “will.” Law in the nineteenth century was and law today is a mixture of these functions. Judicial decisions are not—and never were—simply deduced by pure logic or “reason,” from either some abstract “natural law” or some more positive law; but neither are the decisions merely the judges’ unconstrained edicts. Reasoning—a good deal of often complex reasoning—is typically involved, but creative judgment or decision—or “will”—is required as well. A classical natural law conception provides a useful account that respects and encompasses both sides of these dichotomies—"finding” and “making,” “reason” and “will.” The essential assumption is that there is some kind of normative order that is not made by humans; it is given, or “natural.” Slavery or gratuitous violence are wrong not because some ruler or legislature said so, or because social conventions have come to disapprove of them; they are wrong according to some moral or normative reality that we humans did not enact and cannot repeal. The providential design or “eternal law” of Aquinas’s philosophy would be one version of such a normative order.14 This normative order is the foundation on which law is constructed. And yet the positive law is not merely a written and enforceable photocopy of this normative order or “eternal law,” for at least two reasons. First, no natural law thinker supposes that everything that violates the normative order—everything that is morally wrong, as we say—either is or should be forbidden by the positive law. There are lots of things that are morally wrong but not illegal. Second, the normative order consists of general principles– do not mislead or deceive, treat others with respect, and so forth—that need to be elaborated and made more specific in any actual legal regime. To avoid inflicting bodily injury on others may be a general principle contained in the natural law; whether that principle should be implemented by specifying that vehicles should travel on the right or left side of the road and what the remedies should be for violation of such a rule are matters left to human lawmakers to decide. Aquinas referred to this specifying function as determinatio. And a good deal of law in practice will fall under this heading, as legislators or judges—or legislators and judges working together under some allocation of responsibilities—engage in this elaboration and implementation of the general imperatives or principles and in the application of such elaborations and implementations to individual cases in their wonderful variety and particularity. The law that results from this project of elaborating and specifying and applying will thus involve a complex mix of “reason”—reasoning aimed both at discerning the principles of the normative order and at ascertaining the meanings of the various positive elaborations and specifications—and of “will,” or human choice. And the officials who engage in this project will be performing a complex blend of “finding” and “making.” This account actually fits quite well Banner’s description of what lawyers and judges in the era of explicit natural law thought they were doing.15 The account also fits quite well what even contemporary lawyers and judges actually do, as Banner repeatedly notes.16 But as he also correctly observes, the natural law account does not fit what contemporary lawyers and judges say they do. There thus seems to be a mismatch between what contemporary lawyers actually do (which of course involves a good deal of performative saying—speaking, arguing, justifying, ruling) and what (when asked, and off the record) they say they do. So, once again, how might this peculiar situation– or, in Banner’s words, this “exceedingly strange” situation—have come about? V Banner’s book provides some help in answering this question. Thus, as just noted, a natural law conception might account for what even contemporary lawyers and judges do. But this is an account that those lawyers and judges themselves are mostly unable or unwilling to give. That is because, as a result of the developments Banner discusses, the account has also become pretty much unavailable for purposes of public or professional explanation. Today, the account may be unavailable for either of two main reasons. For many, the natural law account is unavailable because it is unbelievable—incompatible with a modern understanding of the universe. (With an understanding that, ironically or at least confusingly, is often described as “naturalism” or “naturalistic.”17) There is, we now know, no natural or built in “normative order” or eternal law; there is only a vast buzz of forces and of particles in motion and collision, sometimes combining to form organisms that struggle and evolve in a competition of natural selection. Or at least so a conscientiously tough-minded thinker like Holmes will suppose. He and his conscientiously tough-minded kin are not about to explain themselves in a way that hints at any superstitious belief in some “brooding omnipresence in the sky.” Or maybe the tender-minded among us can still believe in a natural normative order—in Aquinas’s eternal law, perhaps—but that belief is in many contexts inadmissible for public or professional purposes. The philosophizing of John Rawls and similarly-minded theorists defends this exclusionary barrier: you can believe in God and the eternal law if you want to, and you can even theorize about such matters; but that sort of belief cannot figure in “public reason” of the kind you would employ as a lawyer or judge when arguing about or explaining law for professional or public purposes. Banner explains how such an assumption of inadmissibility accompanied the separation of law from religion, so that even lawyers who retained their religious faith and their belief in natural law as a “private” matter came to accept the impropriety of natural law reasoning in their professional roles (117-118, 176-180). Such beliefs would henceforth be limited to the domain of “philosophers and ministers” (176). So, if it can no longer be understood as the implementation and specification of some given or natural normative order, where then does law come from? A likely conclusion—and one drawn by many modern thinkers including both Holmes and Langdell (220, 202)—is that law is wholly the product of human “will”: it is made by a legislator or sovereign of some kind. For someone like Holmes, this seemed to have been almost a self-evident truth: what else could law be (once the “brooding omnipresence” is rejected as irrational superstition)? This account of law-as-will most nicely applies to actual legislators: the older idea that even statutes might in some sense be declaratory of the natural law (19-20) by now seems quixotic. But the “will” account can apply to judges as well. Often judges are implementing the will of the legislature. And when, as often happens, judges’ decisions cannot be seen to follow in a determinate way from preexisting legal materials such as a statute or controlling precedent, then the judges must be “making law.” What else could they be doing? But this account of law-as-will, although prevalent today, also seems afflicted with at least two problems that Banner notices. The first we have already seen: the account does not fit what contemporary judges say they are doing, or what they think they are doing (unless, like Banner, we are confident that “in their hearts” they know otherwise). Second, the straightforward account of law as the product of “will” can seem to have scary implications: it can seem to suggest that there is no way that a commitment to “law” would constrain, say, the enormities of a regime like Hitler’s Third Reich that appears to operate under the outward forms of law in a purely positivist sense. This kind of concern could lead prominent legal scholars in the mid-twentieth century—including Lon Fuller but also, more surprisingly, even hard-core legal realists such as Jerome Frank and Karl Llewellyn—to the endorsement of natural law of some sort (226). The concern also prompted a celebrated debate about the nature of law between Fuller and H. L. A. Hart. But it is not only the atrocities of a Hitler that can provoke this concern. Hostility to traditional laws and practices constraining personal autonomy in matters including sexual expression, marriage, or the termination of life has often led modern progressives to insist on something more to law—something that cannot be taken straight from legal texts or official decisions as understood by the officials who made those decisions. And so there has been an almost irresistible demand for something that, whether or not we call it natural law, serves a similar function. Probably the foremost theorist supporting this demand was Ronald Dworkin, whose legal philosophy seemed much like a secular version of natural law.18 To be sure, Dworkin’s conception of the essential reality upon which a natural law theory depends—the normative order—remained elusive. Law is not merely the product of will, Dworkin insisted, nor is it merely conventional. It is based on a morality that is objectively real—real and yet (in contrast to, say, Aquinas’s conception) not part of “the furniture of the universe.”19 So if morality is objective and real, and yet not an object and not part of “the furniture of the universe,” what is it, exactly? What is morality’s and hence law’s ontological status? Some may have understood, or thought they understood, Dworkin’s attempts to respond to that question. Others of us found those attempts more obfuscating than clarifying. VI As the foregoing discussion suggests, the predicament of natural law today, and of law generally, is similar to a predicament that affects thinking about morality. Indeed, it is arguably the same predicament, although for understandable reasons (namely, natural law has seemed dispensable while morality has not) modern thinkers have reacted to those dimensions of the predicament differently. Both law and morality, upon reflection, are up against a daunting metaphysical challenge—a challenge that might be expressed with the question: What sort of thing is this (morality, law) exactly? Alasdair MacIntyre’s influential book After Virtue20 explains how morality and moral reasoning were once about something that could be intelligibly accounted for in then prevailing views of the world. In an Aristotelian conception, morality was about realization of the telos supposed to be inherent in our nature. In a Christian conception, morality was about the practical demands of living in accordance with the providential design. A creative thinker like Thomas Aquinas could combine or synthesize these conceptions. But the “Enlightenment project,” as MacIntyre calls it, rejected or dissolved these conceptions of what morality is. A Baconian or naturalistic approach to science and the world discarded the teleological understanding of the cosmos and of human beings. The naturalistic approach also insisted on understandings not dependent on supernatural entities or suppositions like God or a providential plan. So the older understandings of morality were no longer available. And yet morality itself (whatever it was, or is) did not disappear: human beings continued to be concerned about, and to argue about, right and wrong—about what is and is not moral. But what did the term “morality” even refer to now? To acting so as to produce the greatest amount of good (understood in terms of pleasure and avoidance of pain) for the greatest number? To acting in accordance only with laws that we can consistently will to impose on ourselves? Neither idea quite seems to capture what morality was, or what we intuitively think it is now. But then … what is it? The predicament persists in contemporary moral theorizing. Michael Smith observes that “if one thing becomes clear by reading what philosophers writing in meta-ethics today have to say, it is surely that enormous gulfs exist between them, gulfs so wide that we must wonder whether they are talking about a common subject matter.”21 Much moral philosophy today seemingly consists of elaborate reflections attempting to collect and examine and organize people’s various intuitions with respect to a host of real or exotically hypothetical ethical problems (often involving people threatened with the unhappy prospect being run down by trolley cars). We may indeed have intuitions regarding such scenarios. But what are the intuitions about? About morality, of course; but what sort of thing is that? The intuitions might be merely subjective reactions, nothing more. In which case, seriously, what sort of normative authority should they carry? Or, as moral realists insist, the intuitions might be responses to or perceptions of something that exists objectively and independent of our subjective reactions. Something we call “morality.” But once again, what sort of thing is that? It often seems that the subject matter—the subject of our moral intuitions, and hence of our philosophical discussions– must be, to borrow a phrase, some sort of “brooding omnipresence in the sky.” Much the same situation is apparent in law. Which is hardly surprising, given that natural law expressly supposes a normative or moral order and, as discussed, much of current legal practice seems to reflect a similar albeit implicit and typically disowned supposition. Just as moral philosophers collect and examine intuitions, lawyers and judges collect and examine the rulings and dicta from previously decided and perhaps ancient cases. But why? What are they looking for? The whole enterprise looks “weird or exotic,” as Cass Sunstein has remarked.22 As I have noted, and indeed as Banner repeatedly acknowledges, a good deal even of contemporary legal practice and discourse seem to presuppose something—some sort of “law” that underlies or transcends the visible legal materials, the statutes and precedents—that lawyers and judges are attempting to discern. But what on earth could that something be? In the era of natural law, lawyers and judges appreciated the question, and they offered answers to it. Today we continue to do law much as they did, as Banner shows. But our reigning “naturalistic” conceptions of the world prevent us from giving satisfying answers to the question; and hence we are understandably loathe to acknowledge the question, or the embarrassment, at all. Such is “law’s quandary,” as I have elsewhere called it.23 And although this is not quite what he intends, Stuart Banner’s engaging book tells one chapter—the local, American chapter—of the story of how we came to find ourselves in that quandary. Footnotes 1 Two of the “substitutes”—historical jurisprudence in the style of Savigny, and economics viewed as a source of enduring natural principles—were, Banner argues, short-lived, and hence will not be discussed here (although I suspect that they might also be interpreted as continuations). 2 See Banner, 235-237 (suggesting that decisions like Planned Parenthood v. Casey and Obergefell v. Hodges “engage in a reasoning style reminiscent of an earlier era in which judges were supposed to consider natural law”). 3 For a perceptive exposition, see Thomas C. Grey, “Langell’s Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 1-53. 4 Cf. Grant Gilmore, The Ages of American Law (New Haven: Yale University Press, 1977), 47: The function of the legal scholar [in Langdell’s conception], whether he is writing a treatise or compiling a casebook, is to winnow out from the chaff those very few cases which have ever been correctly decided and which, if we follow them, will lead us to the truth. That is to say, the doctrine—the one true rule of law—does not in any sense emerge from the study of real cases decided in the real world. The doctrine tests the cases, not the other way around. 5 For a more extensive discussion of the questions and claims in this section, see Steven D. Smith, Law’s Quandary (Cambridge, MA: Harvard University Press, 2004), 41-62. 6 Lon L. Fuller, Anatomy of Law (New York: Praeger, 1968), 92 (emphasis added). 7 Ibid., 98 (emphasis added). 8 See Banner, 237 (describing modern approach to retroactivity as “ holdover from the era of natural law”). 9 Ronald Dworkin, Freedom’s Law (Cambridge, MA: Harvard University Press, 1996), 37. 10 Steven D. Smith, Fictions, Lies, and the Authority of Law (Notre Dame, IN: University of Notre Dame Press, 2021), 77-104; cf. Richard Ekins, The Nature of Legislative Intent (Oxford: Oxford University Press, 2012). 11 Smith, Fictions, Lies, and the Authority of Law, 37-73. 12 See Banner, 232 (observing that “at the US Supreme Court, the primary use of the term ‘natural law’ since the 1940s has been as an insult leveled by dissenters at majority opinions they believed strayed too far from the text of the Constitution”). 13 In this vein, Banner, 217-18, quotes a poem by Henry Randolph Blythe published in The Green Bag in 1910: When judge pass on pretty points      Not passed upon before,   Do they declare what is the law      Or what it was before?   I know a man who often says      (It may be legal sin)   That brand new cases but declare      What law has always been.   The court but simply calls to work      The living legal word,   Whose force has ruled the race of man      Since Eve in Eden erred.   This logic, therefore, would conclude      (Though I confess it jars)   That there prevailed in Babylon      The law of motor cars.   The theory may be beautiful,      But its results– Gee Whiz?   For one, I’m quite content to say      Courts make the law that is. 14 The eternal law, Aquinas explained, is “nothing else than the type of divine wisdom, as directing all actions and movements” and “the plan of government in the Chief Governor.” Summa Theologiae I-II, Q. 93, arts. 1, 3, reprinted in The Political Ideas of St. Thomas Aquinas, ed. Dino Binongiari (New York: Hafner, 1953). The “natural law” is that part of the “eternal law” that is accessible to human reason without the aid of divine revelation. And “every human law has just so much of the nature of law as it is derived from the law of nature.” Q. 95, art. 2. 15 See, e.g., Banner, 24 (“Natural law provided the general principles, while positive law supplied the rules delineating how the natural principles would be implemented.”). See also ibid., 65-66. 16 See, e.g., Banner, 249 (“To a great extent courts are doing what they always did when positive law offers little guidance… . We no longer use the term ‘natural law’ to describe this process, but it is similar to the process judges used when natural law was part of the legal system.”). 17 See generally Naturalism in Question, ed. Mario de Caro & David MacArthur (Cambridge, MA: Harvard University Press, 2004), 1-20. Hilary Putnam describes the mandatory quality of this worldview, at least in some academic settings. With respect to philosophy, Putnam explains that: philosophers … announce in one or another conspicuous place in their essays and books that they are “naturalists” and that the view or account being defended is a “naturalist” one; this announcement, in its placing and emphasis, resembles the placing of the announcement in articles written in Stalin’s Soviet Union that a view was in agreement with Comrade Stalin’s; as in the case of the latter announcement, it is supposed to be clear that any view that is not “naturalist” (not in agreement with Comrade Stalin’s) is anathema, and could not possibly be correct. Hilary Putnam, The Content and Appeal of “Naturalism,” in Naturalism in Question, 59. 18 See Banner, 230 (describing Dworkin as “the best-known natural law theorist of the late 20th century in this sense”). 19 Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), 172. 20 Alasdair MacIntyre, After Virtue, rev. ed. (Notre Dame, IN: University of Notre Dame Press, 1984). 21 Michael Smith, The Moral Problem (Oxford: Blackwell, 1994), 3. 22 Cass R. Sunstein, Legal Reasoning and Political Conflict (Oxford: Oxford University Press, 1996), 14. 23 See Smith Law’s Quandary. © The Author(s) 2022. Published by Oxford University Press on behalf of University of Notre Dame. All rights reserved. For permissions, please email: journals.permissions@oup.com. 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TI - Presently Absent, or Absently Present? The Curious Condition of Natural Law
JF - American Journal of Jurisprudence
DO - 10.1093/ajj/auac003
DA - 2022-04-29
UR - https://www.deepdyve.com/lp/oxford-university-press/presently-absent-or-absently-present-the-curious-condition-of-natural-IdHaZkD5N4
SP - 119
EP - 130
VL - 67
IS - 1
DP - DeepDyve
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