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Articles 1 - 30 of 69
Full-Text Articles in Legal History
The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis
The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis
Helm's School of Government Conference - American Revival: Citizenship & Virtue
The paper address the nature of the principles of the Declaration and the Declaration's relationship to the Constitution and how these related to slavery. The argument is that the Declaration did stand for universal equality of the individual before God and the law and therefore its principles condemned slavery. The Constitution did not embrace slavery even though it failed to ban slavery but did set the foundation for the end of slavery.
The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee
The Conceptions Of Self-Evidence In The Finnis Reconstruction Of Natural Law, Kevin P. Lee
St. Mary's Law Journal
Finnis claims that his theory proceeds from seven basic principles of practical reason that are self-evidently true. While much has been written about the claim of self-evidence, this article considers it in relation to the rigorous claims of logic and mathematics. It argues that when considered in this light, Finnis equivocates in his use of the concept of self-evidence between the realist Thomistic conception and a purely formal, modern symbolic conception. Given his respect for the modern positivist separation of fact and value, the realism of the Thomistic conception cannot be the foundation for the natural law as Finnis would …
On The Historical School Of Jurisprudence, Robert E. Rodes
On The Historical School Of Jurisprudence, Robert E. Rodes
Robert Rodes
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 …
Editorial Introduction, Gerard V. Bradley, John M. Finnis
Editorial Introduction, Gerard V. Bradley, John M. Finnis
Gerard V. Bradley
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."
The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George
The New Natural Law Theory: A Reply To Jean Porter, Gerard V. Bradley, Robert George
Gerard V. Bradley
No abstract provided.
Response To Hittinger, Gerard V. Bradley
The Case For "Higher Law", John Warwick Montgomery
The Case For "Higher Law", John Warwick Montgomery
Pepperdine Law Review
No abstract provided.
How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young
How Customary Is Customary International Law?, Emily Kadens, Ernest A. Young
Faculty Scholarship
No abstract provided.
Marketing Natural Law: An Over-Debated And Undersold Product, J. Stanley Mcquade, Richard T. Bowser
Marketing Natural Law: An Over-Debated And Undersold Product, J. Stanley Mcquade, Richard T. Bowser
Richard T. Bowser
No abstract provided.
Marketing Natural Law: An Over-Debated And Undersold Product, J. Stanley Mcquade, Richard T. Bowser
Marketing Natural Law: An Over-Debated And Undersold Product, J. Stanley Mcquade, Richard T. Bowser
J. Stanley McQuade
No abstract provided.
Some Reflections On Historical Elements In Contemporary Written Constitutions: Selected Examples And A Recent Case In Hungary, Stephan Foldes
Some Reflections On Historical Elements In Contemporary Written Constitutions: Selected Examples And A Recent Case In Hungary, Stephan Foldes
Stephan Foldes
Examples of historical law being included in today’s constitutional law are provided by constitutional enactments of the United States, Canada, Sweden, Norway, Belgium, Finland, Luxembourg, Germany, Ireland, France, Turkey, Slovakia, the Czech Republic, and Hungary. Issues of interpretation and application are again raised by a recent case decided in the Constitutional Court of Hungary.
Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen
Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen
Alfred C. Yen
In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.
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
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
Rodger Citron
No abstract provided.
The Hermeneutical And Rhetorical Nature Of Law, Francis J. Mootz Iii
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. …
Jefferson's "Laws Of Nature": Newtonian Influence And The Dual Valence Of Jurisprudence And Science, Allen P. Mendenhall
Jefferson's "Laws Of Nature": Newtonian Influence And The Dual Valence Of Jurisprudence And Science, Allen P. Mendenhall
Allen Mendenhall
Jefferson appears to have conceived of natural law rather differently from his predecessors - namely, Saint Thomas Aquinas, Richard Hooker, Hugo Grotius, Samuel von Pufendorf, John Locke, and, among others, William Blackstone. This particular pedigree looked to divine decree or moral order to anchor natural law philosophy. But Jefferson’s various writings, most notably the Declaration and Notes on the State of Virginia, champion the thinking of a natural historian, a man who celebrated reason and scientific method, who extolled fact over fancy, material over the immaterial, observation over superstition, and experiment over divine revelation. They reveal, in other words, an …
Is International Law Part Of Natural Law?, Anthony D'Amato
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.
The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel
The Natural Right Of Self-Defense: Heller's Lesson For The World, David B. Kopel
David B Kopel
The U.S. Supreme Court's decision in District of Columbia v. Heller constitutionalized the right of self-defense, and described self-defense as a natural, inherent right. Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.
Reason, Revelation, Universality And Particularity In Ethics, John M. Finnis
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 …
Self-Defense In Asian Religions, David B. Kopel
Self-Defense In Asian Religions, David B. Kopel
David B Kopel
This Article investigates the attitudes of six Far Eastern religions - Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism - towards the legitimacy of the use of force in individual and collective contexts. Self-defense is strongly legitimated in the theory and practice of the major Far Eastern religions. The finding is consistent with natural law theory that some aspects of the human personality, including the self-defense instinct, are inherent in human nature, rather than being entirely determined by culture.
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
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.
Marketing Natural Law: An Over-Debated And Undersold Product, J. Stanley Mcquade, Richard T. Bowser
Marketing Natural Law: An Over-Debated And Undersold Product, J. Stanley Mcquade, Richard T. Bowser
Campbell Law Review
No abstract provided.
On The Historical School Of Jurisprudence, Robert E. Rodes
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 …
Holmes On Natural Law, Robert P. George
A Cultural Tour Of The Legal Landscape: Reflections On Cardinal George's Law And Culture, Charles E. Rice
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 …
Reason To Ratify: The Influence Of John Locke's Religious Beliefs On The Creation And Adoption Of The United States Constitution, David L. Wardle
Reason To Ratify: The Influence Of John Locke's Religious Beliefs On The Creation And Adoption Of The United States Constitution, David L. Wardle
Seattle University Law Review
The pervasive influence of Lockean religious convictions motivated the framers of the Constitution to establish a new form of government, provided the theoretical basis for the document itself, and inspired its popular ratification. Part II will lay the groundwork for this thesis by outlining Locke's life and sources of his religious beliefs. Part III will undertake a more substantive examination of Locke's opinions and the writings that memorialized them. Establishing how Lockean ideas of natural law, social contract, and reason are related to the inspiration, drafting, and acceptance of the Constitution takes place in Part IV, before the article's conclusion …
Editorial Introduction, Gerard V. Bradley, John M. Finnis
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
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
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
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 …
Freedom To And Freedom From: A Response To Garvey And Armacost With A Tinge Of Legal Perfectionism, Steve Sheppard
Freedom To And Freedom From: A Response To Garvey And Armacost With A Tinge Of Legal Perfectionism, Steve Sheppard
Steve Sheppard
In his article Control Freaks, 47 Drake L. Rev. 1 (1998), Professor John Garvey offers a controversial explanation of how freedom works and why it is good, which is something the traditional American narrative of freedom assumes without attempting a further justification. Professor Garvey’s theory of freedom depends on freedom’s instrumental quality. Freedom is the mechanism that protects a citizen’s abilities to lead a good life and to act for moral purposes. Professor Garvey asserts that lawmakers must first evaluate the morality of an act before they decide whether it deserves protection. When an act does not serve a moral …