Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, August 18, 2011

Natural Law, "positivism", judging, etc.

This paper, by Michael Baur, is relevant to a number of MOJ posts and conversations about the role of judges, the extent to which they should (or must) identify and enforce the natural law, the work of Hadley Arkes and others, etc.  Among other things, Baur confirms as sound the view of my friend, Judge Diarmuid O'Scannlain, that there is a "third way" (between "positivism" and "aggressive" natural-law thinking) according to which:

judges may not look beyond the positive law in order to enforce what, in their own minds, is required by the natural law; however, judges working within the American tradition may legitimately appeal to natural law moral principles in their legal decision-making, since this sort of appeal is consistent with strict reliance on the positive law itself insofar as natural law moral principles are built into—or embedded within—American positive law itself. . . . 

UPDATE:  Link added. Sorry for the oversight!


Garnett, Rick | Permalink

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Rick, I know that you like Hadley Arkes, but surely you don't think that judges should be enforcing his work, do you? (Kidding, kidding. I know what you meant, but it was funny to me how the sentence was written.)

Posted by: Matt | Aug 18, 2011 2:55:36 PM

Matt -- touche!

Posted by: Rick Garnett | Aug 18, 2011 2:56:25 PM

Is there supposed to be a link to the paper?

Posted by: pb | Aug 18, 2011 5:38:47 PM

Yes, can you post that link, Rick?

Posted by: Other Matt | Aug 19, 2011 2:29:09 PM