Natural Law Commons^™

Of Mangroves And Men: Mobilizing Legal Innovations To Protect Coastal Communities From Climate Displacement, Sarah Dorman, Monica Iyer, Kelsey Jost-Creegan

William & Mary Environmental Law and Policy Review

Around the world, there is growing concern that phenomena related to climate change may render coastal areas unlivable in the coming years and decades. Scientific projections indicate that with high greenhouse gas emissions, sea levels may rise upwards of 6 feet by 2100. Studies repeatedly warn that—absent steep and urgent global emissions reductions— places where hundreds of millions of people currently live will be below projected high tide lines for 2100.

In many coastal areas, climate change often impacts historically marginalized, racialized, and low-income communities first and worst. Such communities are often located in more vulnerable areas like flood plains. …

Children And Chairs, Artifacts And Reality, Adam J. Macleod

Catholic University Law Review

Where do children come from? The source of childhood—either nature or political will—is a matter not merely of chronology but of authority. Whoever makes children gets to define childhood. Legal childhood is one type of legal personhood. Legal personhood matters because legal persons bear legal rights and duties. Rights and duties direct how we act toward each other. Thus, our ideas about how persons come to be, who counts as a person, and how persons are defined in law determine in large part how we act toward persons, both other persons and ourselves.

A legal person is an artifact of …

Natural Lights & Natural Rights: The Problem Of The New Classical Natural Law Theory, Charles Neville Cacciatore

LSU Master's Theses

The present work examines the natural law jurisprudence of John Finnis. It argues that Finnis’s teaching is a genuinely new natural law theory. Finnis’s jurisprudence is not a re- presentation of the jurisprudence of St. Thomas Aquinas because its central element—a doctrine of natural rights—is a departure from Aquinas’s natural law teaching. In support of these claims, the present work relies upon the scholarship of Ernest L. Fortin, A.A. Following Fr. Fortin, it presents an understanding of the natural law that endorses a clear distinction between natural right and natural rights—between premodern political philosophy and modern political philosophy.

The Future Of Natural Property Law: Comments On Eric Claeys's Natural Property Rights, Christopher Serkin

Vanderbilt Law School Faculty Publications

Professor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing.

There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of …

How Far Does Natural Law Protect Private Property, James W. Ely Jr.

Vanderbilt Law School Faculty Publications

This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century. The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical …

Comparing & Contrasting Economic And Natural Law Approaches To Policymaking, Eric Kades

Faculty Publications

Eric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap …

The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis

Helm's School of Government Conference - 2021-2024

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 Path Less Traveled: A Natural Law Critique Of Justice Holmes’ Path Of The Law, Alexander Hamilton

Catholic University Law Review

American law and jurisprudence fail to solve fundamental problems in our country. Every lawyer and judge practices, knowingly or unknowingly, from a particular philosophy of law. Much of the practice of law in the United States is rooted in the thought of Justice Oliver Wendell Holmes, Jr. Holmes taught that law was not grounded in morality and logic, but rather the pragmatic rulings of judges. Our law schools and courts today follow Holmes in defining law as merely what a judge says it is. This Comment argues that Justice Holmes’ definition of law was fundamentally flawed and his jurisprudence should …

Reevaluating Legal Theory, Jeffrey A. Pojanowski

Journal Articles

Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology, as well as a response to the longstanding objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the …

The Mystery Of Law: A Critical Analysis Of H.L.A Hart’S The Concept Of Law, Stephen Mark Gray Ii

Honors Theses

This thesis explores the role of morality in law through a critical examination of the work of one of the most widely cited and renowned judicial scholars, H.L.A. Hart. His modified theory of positivism, which denotes that law and morality are separable and that legal rules may have any content, has had an enduring impact on the landscape of judicial thought in the last century. As Hart’s work has had an indelible hand in shaping analytical jurisprudence and as it exemplifies the antithesis of my argument, it will serve as a theoretical foil. From it, I hope to articulate my …

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 …

A Literary Lens Into Constitutional Interpretation And A Possible Synthesis Of Natural And Positive Law: The Silmarillion, Charles Edward Andrew Lincoln Iv

Mitchell Hamline Law Journal of Public Policy and Practice

The nature of identity in the United States lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity.

The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes.

This rift can be demonstrated by the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various languages of groups of Middle Earth represent and have distinct …

What Good Is John Finnis? Assessing The Personal And Common Good In Natural Law And Natural Rights, Brian Mccall

Faculty Articles

No abstract provided.

A Common Enterprise: Law And The Connection Between Civil And Heavenly Realms In The Writings Of John Calvin, Kenneth L. Townsend

Concordia Law Review

The common ends that once united spiritual and civil realms have been privatized as those ends have come to be seen as controversial and plural, rather than unifying and common. Acknowledging the diversity of ends resulted in increased attention to uniform rules. Since there was no longer agreement about what teloi mattered for society, law gradually lost its aspirational features and became simply a way to limit and punish uncivil and criminal behavior.

The formal separation, but ultimate unity, of civil and heavenly spheres, of norm with vision, articulated by Calvin, allowed him to be both idealistic and realistic about …

Law As A Means To Human Flourishing: Law, Morality, And Natural Law In Policy-Oriented Perspective, Christian L. Gonzalez

Intercultural Human Rights Law Review

In what follows, I first introduce what I take to be the two foundational insights of Policy-Oriented Jurisprudence, to wit: that law is a means that should be defined and studied from the perspective of the political superior or sovereign as inherently a type of decision made in social context that is ideally someone's creative and rational choice. Second, I introduce New Haven's distinction between theories of law and theories about law as framing its assessment of alternative legal theories, including Natural Law. Third, I explore Lasswell's and McDougal's attitude toward Natural Law, as well as the sources from which …

Law As A Means To Human Flourishing: Law, Morality, And Natural Law In Policy-Oriented Perspective, Christian L. Gonzalez-Rivera

Faculty Articles

Friendships can be uneasy without ceasing to be friendships. Because the "pie" of law and morality's relationship can be sliced in many ways and to different yields, in what follows, I consider the simultaneously unexplored, uneasy, and yet promising relationship between the Natural Law tradition and Policy-Oriented Jurisprudence (or "New Haven"), hoping that doing so will partially illuminate aspects of the relationship between morality and the law more generally. My aim is to describe what and how New Haven School founders Myres McDougal and Harold Lasswell thought about Natural Law. As it will become clearer below, despite their critical appraisal …

A New Natural Law Reading Of The Constitution, Santiago Legarre

Louisiana Law Review

The article focuses on how natural law can factor into constitutional interpretation in subtle but significant ways and mentions natural law has two different levels of presence in constitutional law.

Subsidiarity's Roots And History: Some Observations, John M. Finnis

Journal Articles

Subsidiarity, i.e., “the principle of subsidiarity,” i.e., “the principle of subsidiary function/responsibility,” i.e., the principle that it is unjust for a higher authority (e.g., the state’s government and law) to usurp the self-governing authority that lower authorities (e.g., in families or other civil associations), acting in the service of their own members (groups and persons), rightly have over those members, is a presumptive and defeasible, not an absolute, principle. But it excludes any general policy or aim of assuming the control or managerial direction of lower groups. Its deepest rationale is the intrinsic desirability of self-direction (not least in cooperatively …

Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation, Brian Mccall

Faculty Articles

Throughout history, some have questioned whether the authority exercised by some over others is consistent with human nature. Is it possible for a law made by one human being to bind the conscience of another, or is such a claim merely tyranny? If such a power to bind to laws made by humans is justified, what is its scope? The answers to these related questions explored in this Article are both descriptive and normative. This Article explains the nature of authority and the extent of the obligation to obey the law as well as explains how the architecture of natural …

Becoming What We Are: Virtue And Practical Wisdom As Natural Ends, Keith Buhler

Theses and Dissertations--Philosophy

This dissertation is about ethical naturalism. Philippa Foot and John McDowell both defend contemporary neo-Aristotelian ethics but each represents a rival expression of the same. They are united in the affirmation that virtue is ‘natural goodness’ for human beings. Nevertheless, they are divided in their rival conceptions of ‘nature.’ McDowell distinguishes second nature or the "space of reasons" from first nature or the “realm of law.” Foot rejects this division.

On Foot's naturalism, natural goodness is just as much a feature of first nature as health is, even though human practical reasoning is unique in the biological world. I defend …

Enduring Originalism, Jeffrey A. Pojanowski, Kevin C. Walsh

Journal Articles

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the “positive turn” in originalism. Defenses of originalism in this vein are “positive” in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: …

Legal Agreement, Andrew Tutt

Akron Law Review

This Article grapples with the question of what it means to agree about what the law is. First, it shows that the question of what it means to “agree about the law” invites us to consider many different kinds of agreement and disagreement we might have about what the law is. Second, it shows that without selecting one of these kinds of agreement, we cannot speak intelligibly about whether we agree or disagree. Third, it explains that this failure to choose is a source of much confusion and apparent disagreement between competing philosophers and philosophies of law. Fourth, it argues …

William Cullen Bryant And The Poetry Of Natural Law, Steven M. Richman

Akron Law Review

The question has more than academic interest, as noted in Lloyd Weinreb's Natural Law and Justice, in which he argues for a return to natural law's ontological basis.' Tracing its roots in Greek expressions of natural law that allowed for free will in an otherwise determinate natural order, Weinreb surveys the history of natural law only to find that what began as ontological became deontological, which led natural law theories away from nature and reason and towards a focus on concepts of morality. He argues ultimately that such deontological theories fail to answer the question of human freedom within a …

A Radical Theory Of Jurisprudence: The "Decisionmaker" As The Source Of Law - The Ohio Supreme Court's Adoption Of The Spendthrift Trust Doctrine As A Model, Gerald P. Moran

Akron Law Review

This article will apply the jurisprudential thesis that law is essentially the naked preference of the Decisionmaker in examining the judicial enactment of Ohio's spendthrift trust doctrine. With some degree of hope, such an examination will clarify the Decisionmaker's institutional role in the Ohio Supreme Court's determination of whether a spendthrift trust is valid. In doing so, the article will ask why the Court adopted one line of legal reasoning over another? To this end, the often noted observation of the great sage Holmes enlightens us to the principle that an explanation is not found in the exercise of logic, …

Southern Free Women Of Color In The Antebellum North: Race, Class, And A "New Women's Legal History", Bernie D. Jones

Akron Law Review

This article develops Welke’s theme and proposes that in the field of legal history, the analyses can not be limited to “race, gender, or class,” but that matrices of race, gender, and class must be considered at their intersections, “race, and gender, and class,” where they might shed light on the significance of shifting legal modalities. It explores how race, gender, and class as legal policy in the 19th century could be crucial for the formation of family and marital relationships in the private sphere. The focus here is upon free women of color living in the antebellum North who …

"The Tempest": Shady Grove Orthopedic Associates, P.A. V. Allstate Insurance Co.: The Rules Enabling Act Decision That Added To The Confusion - But Should Not Have, Donald L. Doernberg

Akron Law Review

This Article discusses the effect Shady Grove is likely to have on vertical choice-of-law in cases involving a Federal Rule of Civil Procedure...Part II of the Article discusses the majority opinion. Part III deals with parts II-B and II-C of Justice Scalia’s opinion and with the concurrence. Part IV addresses the dissent. Part V offers a critical evaluation of the opinions. Part VI discusses some of the scholarly interpretations of REA and suggests two possible perspectives on REA’s substantive-rights limitation that make it more understandable in light of the Erie doctrine’s history, easier to navigate, and less of a threat …

Grounding Human Rights In Natural Law, John M. Finnis

Journal Articles

Of the published reviews of Natural Law and Natural Rights, one of the most, and most enduringly, influential was Ernest Fortin's review-article "The New Rights Theory and the Natural Law" (1982). The present essay takes the occasion of that review's latest republication to respond to its main criticisms of the theory of natural law and natural or human rights that is articulated in Natural Law and Natural Rights. The response deals with a number of fundamental or strategically important issues: the freedom of thought and/or the intellectual autonomy and integrity of work within an intellectual tradition that overlaps with a …

Planning Positivism And Planning Natural Law, Martin J. Stone

Articles

Scott Shapiro offers an elaboration and defense of “legal positivism,” in which the official acceptance of a plan figures as the central explanatory notion. Rich in both ambition and insight, Legality casts an edifying new light on the structure of positive law and its officialdom. As a defense of positivism, however, it exhibits the odd feature that its main claims will prove quite acceptable to the natural lawyer. Perhaps this betokens – what many have begun to suspect anyway – that our usual tests for classifying legal theories (as positivist or not) are, in the present state of discussion, no …

El Derecho Naturaly Ia Constitución De Los Estados Unidos = Natural Law And The United States Constitution, Robert S. Barker

Barker Papers

En la Declaración de lndependencia de los Estados U nidos, los Fundadores proclamaron su fe en Dios y en el Derecho Natural. Once años después, otro grupo de Fundadores se reunieron para diseñar un instrumento que fortaleciera la unión entre los Estados. Su obra -la Constitución de los Estados Unidos- es una aplicación práctica de los principios del Derecho Natural invocados en la Declaración de lndependencia.

El Derecho Natural de los Fundadores de la Constitución es el Derecho Natural clásico - tradicional de la civilización griega - romana - cristiana, basado en Dios, y no el Derecho Natural de …

Natural Law, State Interest, And Economic Embargoes, Antonio Jorge

Intercultural Human Rights Law Review

Remarks by Antonio Jorge entitled "Natural Law, State Interest, and Economic Embargoes".