Law Commons^™

How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Hermeneutical And Rhetorical Nature Of Law, Francis J. Mootz Iii

Scholarly Works

In its most venal manifestation, scholarly writing betrays the anxiety of influence by claiming to offer a radically new solution to age-old conundrums. The goal is to make a clean break from a traditional path of thought that has become trapped in a cul-de-sac, to make progress by finding a new way forward. Not so with Jean Porter’s work, and particularly her most recent book. Professor Porter demonstrates that thinking through an established tradition – one that has responded to numerous challenges within very different contexts over several millennia – can sometimes offer the most productive response to contemporary dilemmas. …

Is International Law Part Of Natural Law?, Anthony D'Amato

Faculty Working Papers

The affinity of international law to natural law goes back a long way to the classic writers of international law. "Natural law" is the method of dispute resolution based on a conscious attempt to perpetuate past similarities in dispute resolution. "International law" has a deep affinity to this natural law method, for it consists of those practices that have "worked" in inter-nation conflict resolution.

Reason, Revelation, Universality And Particularity In Ethics, John M. Finnis

Journal Articles

This address to a philosophical conference on truth and faith in ethics engages in an extended critique of the account of truth in Bernard Williams, Truth and Truthfulness: an essay in genealogy (Princeton University Press, 2002). For any jurisprudential, moral or political theory that affirms natural law needs to respond first to sceptical denials that reason can discover any truths about what ends all human individuals or groups ought to pursue. But any such theory also needs to make clear how it differs from, even when it coincides in moral judgment with, bodies of moral teaching self-identified as part of …

The Nuremberg Trials And American Jurisprudence: The Decline Of Legal Realism, The Revival Of Natural Law, And The Development Of Legal Process Theory, Rodger D. Citron

Scholarly Works

No abstract provided.

On The Historical School Of Jurisprudence, Robert E. Rodes

Journal Articles

Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as these …

A Cultural Tour Of The Legal Landscape: Reflections On Cardinal George's Law And Culture, Charles E. Rice

Journal Articles

When a ruling of the supreme court meets with Congressional disfavor there are several remedies available to Congress. If the decision is not on a constitutional level, a later statutory enactment will suffice to reverse or modify the ruling. If, however, the Court's decision is an interpretation of a constitutional mandate, such as the requirement of the fourteenth amendment that legislative districts be apportioned according to population, then a statute could not reverse the decision because the statute itself would be subject to that constitutional mandate as defined by the Court.

The obvious method of reversing a Supreme Court interpretation …

Editorial Introduction, Gerard V. Bradley, John M. Finnis

Journal Articles

This Article is a forward to nine articles from the 2001 Symposium on Natural Law and Human Fulfillment, held at Notre Dame Law School. The Symposium was held to mark the 35th anniversary of the publication of Germain Grisez's "The First Principle of Practical Reason: A Commentary on the Summa Theologiae."

Natural Law, Marriage, And The Thought Of Karol Wojtyla, John J. Coughlin

Journal Articles

This Article examines the loss of the natural law perspective from legal theory and the movement towards liberal theory. The Article continues by analyzing two features of the natural law tradition as described in the philosophical writings of Karol Wojtyla. The first feature concerns marriage and family as the fundamental human community. The second considers marriage as a virtuous relationship. The Article concludes with practical suggestions for the legal profession and legal education with regard to counseling clients about marriage.

Natural Law And The Cultivation Of Legal Rhetoric, Francis J. Mootz Iii

Scholarly Works

This essay appeared in a book celebrating Lon Fuller's contributions to jurisprudence. In it, Professor Mootz argued that Fuller's conception of secular natural law, designated as an "internal morality of law," lends welcome assistance to the effort to articulate a new direction in legal philosophy. He defended Fuller's natural-law approach from the common misinterpretations that it is either a hollow echo of the natural law tradition or an essentialist conception of law at odds with the legal-realist world that he helped to create with his doctrinal scholarship. By reading his famous, "The Case of the Speluncean Explorers," in a new …

Law In Flux: Philosophical Hermeneutics, Legal Argumentation And The Natural Law Tradition, Francis J. Mootz Iii

Scholarly Works

Peter Goodrich describes the plight of contemporary legal theory with concise accuracy: We have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure. The ascendancy of analytic legal positivism has purchased conceptual rigor at the cost of separating the analysis of legal validity from moral acceptability, but retreat from this stale conceptualism and a return to traditional natural law precepts appears wildly implausible. The irrelevance of the natural law tradition in …

Natural Law And The Ethics Of Discourse, John M. Finnis

Journal Articles

This essay argues that Plato's critical analysis of the ethics of discourse is superior to Habermas', and more generally that Habermas has no sufficient reason to propose or suppose the philosophical superiority of "modernity." The failure of Hume and Kant and much modern philosophy to understand the concept and content of reasons for action underlies Habermas' attempted distinction between ethics and morality, and Rawls' concept of public reason. A proper study of discourse also yields a metaphysics of the person, and thus reinforces the ethics.

The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George

Journal Articles

The theory of practical reasoning and morality proposed by Germain Grisez, and developed by him in frequent collaboration with John Finnis and Joseph Boyle, is the most formidable presentation of natural law theory in this century. Although work by Finnis and others has brought this "new natural law theory" (NNLT) to the attention of secular philosophers, the theory is of particular interest to Catholic moralists. This is because NNLT provides resources for a fresh defense of traditional moral norms, including those forbidding abortion, euthanasia, and other forms of "direct" killing, as well as sexual immoralities such as fornication, sodomy, and …

Response To Hittinger, Gerard V. Bradley

Journal Articles

No abstract provided.

Liberalism And Natural Law Theory, John M. Finnis

Journal Articles

I shall argue, in the course of this lecture, that the title I gave myself is a bad one, one that sets a bad example. "Liberalism," like "conservatism" and "socialism," is too local, contingent and shifting a term to deserve a place in a general theory of society, politics, government and law. So I had better say at once which proposition or set of propositions I, on this occasion, was gesturing towards with the word "liberalism," out of all the many propositions, often conflicting, which have been called "liberal." What I had in mind was the thesis that government and …

Revolution And Judicial Review: Chief Justice Holt's Opinion In City Of London V. Wood, Philip A. Hamburger

Faculty Scholarship

In 1702, in an opinion touching upon parliamentary power, Chief Justice Sir John Holt discussed limitations on government in language that has long seemed more intriguing than clear. Undoubtedly, the Chief Justice was suggesting limitations on government – limitations that subsequently have become quite prominent, particularly in America. Yet even the best report of his opinion concerning these constraints has left historians in some doubt as to just what he was saying and why it was significant.

The case in which Chief Justice Holt was so obscure about matters of such importance, City of London v. Wood, revived the …

Concluding Reflections, John M. Finnis

Journal Articles

A symposium to which one person contributes three extended papers is no unmixed pleasure for readers. This third contribution of mine will interest only those curious to see my response to other symposiasts' comments on my earlier efforts (in the symposium and elsewhere). To enable this curiosity to be satisfied as costlessly as possible, I divide these concluding reflections by authors rather than themes, though with priorities suggested by themes rather than authors.

Natural Law And Legal Reasoning, John M. Finnis

Journal Articles

Much academic theory about legal reasoning greatly exaggerates the extent to which reason can settle what is greater good or lesser evil, and minimizes the need for authoritative sources which, so far as they are clear and respect the few absolute moral rights and duties, are to be respected as the only rational basis for judicial reasoning and decision, in relation to the countless issues which do not directly involve those absolute rights and duties. A natural law theory in the classical tradition makes no pretense that natural reason can determine the one right answer to those countless questions which …

Some Reasons For A Restoration Of Natural Law Jurisprudence, Charles E. Rice

Journal Articles

The growing influence of utilitarianism and legal positivism in American jurisprudence today and the decline of natural law have produced an ominous shift in the foundation of our legal system. This shift is illustrated by various courts' approaches to momentous legal issues of the Twentieth Century such as abortion and euthanasia. Ultimately, legal positivism is unacceptable as a jurisprudential framework because it provides no inherent limits on the power of the state and no basis for determining what is just. In contrast, the natural law provides a jurisprudential framework that both guides and limits the civil law. It therefore is …

Chapter 3 - Religion, Rights And Difference In The Early Woman's Rights Movement (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

The meeting of feminists at Seneca Falls in July of 1848 marked the nominal beginning of the movement which in the nineteenth century was labeled "woman's rights." For us that term has become commonly interchangeable with "suffrage," and we often assume that "woman's rights" describes a seventy-odd year campaign to gain civil and political power and protection from a government which -- although it had perpetrated outrages against women and blacks -- had an unquestioned legitimacy as the guarantor and enforcer of rights.

Religion, Rights And Difference In The Early Woman's Rights Movement, Elizabeth B. Clark

Publications

The meeting of feminists at Seneca Falls in July of 1848 marked the nominal beginning of the movement which in the nineteenth century was labeled "woman's rights." For us that term has become commonly interchangeable with "suffrage," and we often assume that "woman's rights" describes a seventy-odd year campaign to gain civil and political power and protection from a government which -- although it had perpetrated outrages against women and blacks -- had an unquestioned legitimacy as the guarantor and enforcer of rights.

Practical Principles, Moral Truth, And Ultimate Ends, John M. Finnis, Germain Grisez, Joseph Boyle

Journal Articles

The natural-law theory on which we have been working during the past twenty-five years has stimulated many critical responses. We have restated the theory in various works, not always calling attention to developments. This paper reformulates some parts of the theory, taking into account the criticisms of which we are aware.

The "Natural Law Tradition", John M. Finnis

Journal Articles

This "tradition of natural law theory" has three main features: First, critique and rejection of ethical scepticism, dogmatism and conventionalism; Second, clarification of the methodology of descriptive and explanatory social theories (e.g., political science, economics, jurisprudence .... ); Third, critique and rejection of aggregative conceptions of the right and the just (e.g., consequentialism, utilitarianism, wealth-maximization, "proportionalism"...).

Jurisprudence As Narrative: An Aesthetic Analysis Of Modern Legal Theory, Robin West

Georgetown Law Faculty Publications and Other Works

Recent legal scholarship has engaged in a growing dialogue tying literary criticism to jurisprudence. In this article, Professor Robin West adds her voice by advocating the reading of legal theory as a form of narrative. Drawing from Northrop Frye's “Anatomy of Criticism,” Professor West first details four literary myths that combine contrasting world visions and narrative methods. She then applies Frye's categories to Anglo-American jurisprudential traditions and employs aesthetic principles to analyze influential legal theorists within these traditions. Finally, Professor West argues that recognizing the aesthetic dimension of legal debate frees us to realize our moral ideals.

The Basic Principles Of Natural Law: A Reply To Ralph Mcinerny, John M. Finnis, Germain Grisez

Journal Articles

In the preceding volume of this journal, Prof. Mclnerny criticized certain theoretical positions of Finnis and Grisez as well as their interpretation of St. Thomas. In the present article Finnis and Grisez reply that Mclnerny's criticisms lack cogency, because he has misunderstood their theories, judged their exegesis by his own different interpretation assumed gratuitously to be correct, and mixed philosophical and historical criticism in a way which helps to clarify neither the problems of ethical theory nor those of Thomistic exegesis.

The Problem Of Unjust Laws, Charles E. Rice

Journal Articles

John Finnis has contributed most significantly to our understanding of how "practical reasonableness"' has affected creation and evaluation of human law. The main objective of a theory of natural law is to show how sound laws are to be derived from principles based on reason. It is true, as Finnis points out, that "the affirmation that 'unjust laws are not law' . . is [generally] a subordinate theorem" of natural law theory. Nevertheless, the experience of the past half century requires that we examine seriously, as Finnis has, the moral obligation of the unjust law.

Ideology And History, David F. Forte

Law Faculty Articles and Essays

I do not dispute the philosophical validity of the theory of natural rights. Indeed, I support much, if not most, of the principles embodied in that theory. What I wish to discuss is that to which Dr. Vieira claims to have limited his discussion, viz., the belief that history, specifically American constitutional history, provides a sufficient base to support a natural rights theory. His attempt to find historical support is an instructive example of how ideology can distort the data of history and cause it to be portrayed in a strange and unreal light. Beyond that, Vieira's historical method also …

Statutes As Judgments: The Natural Law Theory Of Parliamentary Activity In Medieval England, Morris S. Arnold

Articles by Maurer Faculty

The proposition that late medieval English lawgivers believed themselves to be exercising a declarative function has been so frequently put forward and so widely accepted that it is in danger of being canonized by sheer dint of repetition; and thus one who would deny the essential validity of that notion bears the virtually insuperable burden of proof commonly accorded an accused heretic. Nevertheless, it will be argued here that natural law notions are attributed to the medieval English legislator with only the slightest support from the sources, and after only the most rudimentary and uncritical analyses of the implications of …

Natural Law Demythologized: A Functional Theory Of Norms For A Revolutionary Epoch, E. F. Roberts

Cornell Law Faculty Publications

Jurisprudence can afford us some insight into whether a particular system is functioning effectively. To do this jurisprudes must extrapolate the aims of the society and then evaluate how effectively its legal system functions to structure social activity so that those aims are realized in an orderly fashion. Jurisprudence is seen, therefore, to be a form of time and motion study on a grand scale. Judgments about the ultimate worth of a given society’s aims are excluded from jurisprudence, however, on the ground that such emotionally charged and ethically relative conclusions cannot be proved by any empirically verifiable scale of …

Professor H.L.A. Hart's Concept Of Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.