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July 12-16, 2005


Thomistic Understanding of Natural Law

as the Foundation of Positive Law



The Relation Between Natural Law and Positive Law in American Judicial Review



Christopher Wolfe

Marquette University



There was an early “temptation” of American judges to enforce the natural law directly by judicial review (i.e., striking down laws contrary to natural law), the classic expression of which was Justice Samuel Chase’s opinion in Calder v. Bull.  This approach (as Justice James Iredell–who believed in natural law as much as Justice Chase–pointed out in another opinion in the case) was erroneous, because the implications of natural law for positive law cannot always be deduced in a relatively straight-forward way.

The failure to realize the problem of the gap between natural law principles and positive law applications of principle eventually caused serious problems in American law and politics, especially with respect to property rights. During the period 1890-1937 the American Supreme Court engaged in considerable judicial activism, extending too broad a protection to property rights . This was wrong, not because property rights are unimportant (they certainly are), but because it was wrong to think that judges should have the power directly to enforce property rights by judicial review, even in the absence of specific constitutional prohibitions.  Moreover, the courts tended to overstate property rights as well. What the exact scope of property rights is, and what the proper limits on property rights are, are complex questions to which the general provisions of the American Constitution offer few answers.  Accordingly, those questions need to be carefully worked out in the legislative process.

This does not mean that natural law is irrelevant when dealing with complex issues such as the form and scope of property rights (just because judges are not directly enforcing it).  The legislators dealing with such issues should be well-grounded in broad natural law principles, which will help them make the appropriate prudential judgments they need to make.

The general principles that emerge from a study of this aspect of American legal history, then, are first, that natural law is necessary as a foundation for positive law, but second, that natural law does not always provide clear guidance or direct commands for positive law. The extent of guidance provided by natural law for positive law will vary with the nature of the problem.  For example, property rights and economic regulation generally are areas in which there is considerable leeway for people who share the same natural law principles to differ about the application of those principles.  On the other hand, areas involving fundamental principles of human dignity, such as abortion and euthanasia, may have more direct and clear implications for positive law, while still leaving certain questions to prudential determination.