UI 305 Judicial Reasoning
Natural Law Theory
•Links law to morality
•Links law to religion
•Separates law from mere power
•Alternative to positivism and
cynicism
Natural Law Theory
• Positive law can be properly understood
only by analyzing it as the concrete
realization of the abstract principles and
functions of natural law.
• Human beings are by nature political
animals. Certain forms of social
organization are essential to human
existence. These essential forms
constitute the natural law.
Three Versions of NLT
• Natural law is grounded in human nature,
understood biologically. (Aristotle)
• Natural law is binding as law only because
it is backed up by God's commands. (St.
Thomas)
• The natural law consists of the axioms of
practical reason, i.e., self-evident, quasilogical truths about what is good and right.
(Kant, Finnis)
Weak vs. Strong NLT
Weak or Minimal NLT
• If a so-called "law" fails utterly to realize
the principles of natural law (if it
fundamentally contradicts natural law),
then it is null and void, no law at all.
• However, natural law has no binding force
in and of itself until it is enacted into
positive law.
Strong or Maximal NLT
• Positive law has no validity when in
conflict with natural law,
• but the natural law can in some cases be
valid and binding in the absence of
positive law.
– For example, the prosecution of Nazi war
criminals for "crimes against humanity".
Judges and the Enforcement of
Unjust Statutes
• A judge following NLT can honestly set aside a
statute that contradicts natural law, while still
acting as a judge, applying the law.
• A legal positivist judge cannot. A positivist judge
has four options:
–
–
–
–
Enforce the unjust statute.
Openly disregard and defy the law.
Resign or recuse himself from the case.
Dishonestly adopt NLT to rationalize the decision to
set aside the statute.
Natural Law and the American
Constitution
• Ancient, medieval and common-law
tradition recognized the propriety of
"equitable construction": interpreting a
statute so as to make it conform to natural
principles of justice, even if this means
setting aside its literal meaning.
• Did this tradition become incorporated into
the unwritten constitution of the U.S.?
Aristotle on Equity and the Law
• When a case arises on it which is not
covered by a universal statement, then it is
right, where the legislator fails us and has
erred, to correct the omission -- to say
what the legislator himself would have said
had he been present, and would have put
into his law had he known. And this is the
nature of the equitable, a correction of law
where it is defective owing to its
universality. (NE, Bk. V, sec. 10)
Equitable Construction
• In the Middle Ages, this was broadened to
include cases where the law was deficient
by excessive particularity: extensive
equitable construction.
• Hamilton: "Many things within the letter of
the statute are not within its equity, and
vice versa." (The Law Practice of A.
Hamilton, Volume I, p. 357)
Early appeals to natural law by
Supreme Court
• Chief Justice Chase, in Calder v. Bull
(1798)
• Chief Justice Marshall in Fletcher v. Peck,
6 Cranch 87 (1810)
Chief Justice Chase, in Calder v.
Bull
• The purposes for which men enter into
society will determine the nature and
terms of the social compact. An Act of the
Legislature (for I cannot call it a law)
contrary to the great first principles of the
social compact cannot be considered a
rightful exercise of legislative authority....
• It is against all reason and justice for a
people to entrust a Legislature with such
powers [as ex post facto laws, impairing
contracts, making someone a judge in his
own case]; and, therefore, it cannot be
presumed that they have done it. The
genius, the nature, and the Spirit of our
State Governments, amount to a
prohibition of such acts of
legislation....[Legislatures] cannot change
innocence into guilt, or punish innocence
as a crime." (at 388)
Marshall in Fletcher v. Peck:
• "It may well be doubted whether the nature
of society and of government does not
prescribe some limits to the legislative
power ... the question, whether the act of
transferring the property of an individual to
the public, to be in the nature of the
legislative power, is well worthy of serious
reflection....
• It is the peculiar province of the legislature
to prescribe general rules for the
government of society; the application of
those rules to individuals in society would
seem to be the duty of other departments."
Riggs v. Palmer, 115 NY 506
(1889)
• Elmer Palmer murdered his grandfather,
who left Elmer the bulk of his estate in his
will.
• The NY statutes provided no exception in
the case of murderous heirs.
• NY Supreme Court ruled against Palmer,
employing equitable construction of the
statute.
Test Cases
• The Grudge Informers
• The Nuremberg Trials
• The Fugitive Slave Cases