Natural-law theory grounds human laws in universal truths of God’s creation. The task of the judicial system was to build an edifice of positive law on natural law’s foundations. R. H. Helmholz shows how lawyers and judges made and interpreted natural law arguments in the West, and concludes that historically it has advanced the cause of justice.
"With keen insight into the common law mind, Edlin argues that there are rich resources within the law for judges to ground their opposition to morally outrageous laws, and a legal obligation on them to overturn it, consequent on the general common law obligation to develop the law. Thus, seriously unjust laws pose for common law judges a dilemma within the law, not just a moral challenge to the law, a conflict of obligations, not just a crisis of conscience. While rooted firmly in the history of common law jurisprudence, Edlin offers an entirely fresh perspective on an age-old jurisprudential conundrum. Edlin's case for his thesis is compelling." ---Gerald J. Postema, Cary C. Boshamer Professor of Philosophy and Professor of Law, University of North Carolina at Chapel Hill, and author of Bentham and the Common Law Tradition "Douglas Edlin builds a powerful historical, conceptual, and moral case for the proposition that judges on common law grounds should refuse to enforce unjust legislation. This is sure to be controversial in an age in which critics already excoriate judges for excessive activism when conducting constitutional judicial review. Edlin's challenge to conventional views is bold and compelling." ---Brian Z. Tamanaha, Chief Judge Benjamin N. Cardozo Professor of Law, St. John's University, and author of Law as a Means to an End: Threat to the Rule of Law "Professor Edlin's fascinating and well-researched distinction between constitutional review and common law review should influence substantially both scholarship on the history of judicial power in the United States and contemporary jurisprudential debates on the appropriate use of that power." ---Mark Graber, Professor of Law and Government, University of Maryland, and author of Dred Scott and the Problem of Constitutional Evil Is a judge legally obligated to enforce an unjust law? In Judges and Unjust Laws, Douglas E. Edlin uses case law analysis, legal theory, constitutional history, and political philosophy to examine the power of judicial review in the common law tradition. He finds that common law tradition gives judges a dual mandate: to apply the law and to develop it. There is no conflict between their official duty and their moral responsibility. Consequently, judges have the authority---perhaps even the obligation---to refuse to enforce laws that they determine unjust. As Edlin demonstrates, exploring the problems posed by unjust laws helps to illuminate the institutional role and responsibilities of common law judges. Douglas E. Edlin is Associate Professor of Political Science at Dickinson College.
Author: Center for the Study of Democratic Institutions
Category: Civil rights
The idea of natural law, says the author, "is based on a belief that there exists a moral order which every normal person can discover by using his reason, and of which he must take account if he is to attune himself to his necessary ends as a human being." This notion has supported the philosophy and behaviour of men in all cultures since the beginning of society. It is implicit in the Mosaic code; is fundamental in the thought of Aristotle, Thomas Aquinas, Rousseau, Newton and Mill; served as the "higher law" basis for English common law and the American Constitution; and is still relevant today. It is to natural law and to its relation to the condition of our society that the seven distinguished contributors to this volume address themselves. In keeping with their widely divergent backgrounds and different faiths, the writers reveal a refreshing range of opinion within a fundamental unity.
Pound, Roscoe. An Introduction to the Philosophy of Law. New Haven: Yale University Press, 1922. 307 pp. Reprinted 2003 by The Lawbook Exchange, Ltd. LCCN 2002044351. ISBN 1-58477-327-8. Cloth. $70. * Pound's Introduction outlines the philosophical foundations that support Anglo-American common law. A written version of the Storrs Lectures delivered at Yale University during the academic year 1921-1922. "Dean Pound has given us a clear, concise introduction to the philosophy of the law. It is so concise that it is impossible to summarize it so as to give any idea of its wealth of learning....An excellent, impartial and concise presentation of the subject..." William Herbert Page, Harvard Law Review 36:115-117 cited in Marke, A Catalogue of the Law Collection at New York University (1953) 922.
This book argues for a change in our understanding of the relationships among law, politics and history. Since the turn of the nineteenth century, a certain anti-foundational conception of history has served to undermine law's foundations, such that we tend to think of law as nothing other than a species of politics. Thus viewed, the activity of unelected, common law judges appears to be an encroachment on the space of democracy. However, Kunal M. Parker shows that the world of the nineteenth century looked rather different. Democracy was itself constrained by a sense that history possessed a logic, meaning and direction that democracy could not contravene. In such a world, far from law being seen in opposition to democracy, it was possible to argue that law - specifically, the common law - did a better job than democracy of guiding America along history's path.
This book illustrates the deep roots of natural law doctrines in America's political culture. Originally published in 1931, the volume shows that American interpretations of natural law go to the philosophical heart of the American regime. The Declaration of Independence is the preeminent example of natural law in American political thoughtit is the self-evident truth of American society.Benjamin Wright proposes that the decline of natural law as a guiding factor in American political behaviour is inevitable as America's democracy matures and broadens. What Wright also chronicled, inadvertently, was how the progressive critique of natural law has opened a rift between and among some of the ruling elites and large numbers of Americans who continue to accept it. Progressive elites who reject natural law do not share the same political culture as many of their fellow citizens.Wright's work is important because, as Leo Strauss and others have observed, the decline of natural law is a development that has not had a happy ending in other societies in the twentieth century. There is no reason to believe it will be different in the United States.
American legal thought has progressed remarkably quickly from premodernism to modernism and into postmodernism in little over 200 years. This text tells the story of this mercurial journey of jurisprudence by showing the development of legal thought through these three intellectual periods.
An account of a fundamental change in American legal thought, from a conception of law as something found in nature to one in which law is entirely a human creation. Before the late 19th century, natural law played an important role in the American legal system. Lawyers routinely used it in their arguments and judges often relied upon it in their opinions. Today, by contrast, natural law plays virtually no role in the legal system. When natural law was part of a lawyer's toolkit, lawyers thought of judges as finders of the law, but when natural law dropped out of the legal system, lawyers began thinking of judges as makers of the law instead. In The Decline of Natural Law, the eminent legal historian Stuart Banner explores the causes and consequences of this change. To do this, Banner discusses the ways in which lawyers used natural law and why the concept seemed reasonable to them. He further examines several long-term trends in legal thought that weakened the position of natural law, including the use of written constitutions, the gradual separation of the spheres of law and religion, the rapid growth of legal publishing, and the position of natural law in some of the 19th century's most contested legal issues. And finally, he describes both the profession's rejection of natural law in the late 19th and early 20th centuries and the ways in which the legal system responded to the absence of natural law. The first book to explain how natural law once worked in the American legal system, The Decline of Natural Law offers a unique look into how and why this major shift in legal thought happened, and focuses, in particular, on the shift from the idea that law is something we find to something we make.