The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped

265 Pages·2021·12.697 MB·English

by  Stuart Banner

The Decline of Natural Law

The Decline of Natural Law
How American Lawyers Once Used Natural Law and
Why They Stopped
STUART BANNER
1
1
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Library of Congress Cataloging- in- Publication Data
Names: Banner, Stuart, 1963– author.
Title: The decline of natural law : how American lawyers once used natural law
and why they stopped / Stuart Banner, UCLA School of Law.
Description: New York, NY : Oxford University Press, 2021. |
Includes bibliographical references and index.
Identifiers: LCCN 2020043255 (print) | LCCN 2020043256 (ebook) |
ISBN 9780197556498 (hardback) | ISBN 9780197556511 (epub)
Subjects: LCSH: Natural law. | Common law. | Religion and law.
Classification: LCC K450 .B36 2021 (print) | LCC K450 (ebook) | DDC 340/ .112— dc23
LC record available at https:// lccn.loc.gov/ 2020043255
LC ebook record available at https:// lccn.loc.gov/ 2020043256
DOI: 10.1093/ oso/ 9780197556498.001.0001
1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
CONTENTS
Acknowledgments vii
INTRODUCTION 1
PART I: BEFORE THE TRANSITION
1. THE LAW OF NATURE 11
2. THE COMMON LAW 46
PART II: CAUSES OF THE TRANSITION
3. THE ADOPTION OF WRITTEN CONSTITUTIONS 71
4. THE SEPARATION OF LAW AND RELIGION 96
5. THE EXPLOSION IN LAW PUBLISHING 119
6. THE TWO- SIDEDNESS OF NATURAL LAW 137
PART III: THE TRANSITION AND AFTER
7. THE DECLINE OF NATURAL LAW AND CUSTOM 167
8. SUBSTITUTES FOR NATURAL LAW 188
9. ECHOES OF NATURAL LAW 222
Index 251
v

ACKNOWLEDGMENTS
I’d like to thank Mark Greenberg, Dick Helmholz, Maximo Langer, Seana
Shiffrin, participants in colloquia at UCLA and SUNY Buffalo, and the readers
for Oxford University Press, who all offered extraordinarily helpful suggestions.
vii

Introduction
This book is about a fundamental change in American legal thought that took
place in the late 19th and early 20th centuries. Before the change, natural law
played an important role in our legal system. Lawyers believed that human affairs
were governed in significant part by laws of nature, laws that could be discov-
ered in much the same way as the natural laws governing the nonhuman realm.
These laws were understood to have an existence independent of human voli-
tion. They were not human creations. Before the change described in this book,
for example, the law forbidding murder was understood to be a natural principle
that regulated the behavior of human beings. It was a law that we found, not one
that we made. To be sure, nations might enact legislation forbidding murder, but
American lawyers before 1870 or so would have said, with virtual unanimity,
that murder would still be illegal even in a nation that had not enacted any such
legislation. It would be illegal because murder was contrary to the law of nature.
The law forbidding murder was like the law of gravity or the laws of optics. It was
a law that existed in nature, waiting to be discovered— not made— by humans.
This understanding of law almost completely disappeared from the legal
system in the late 19th and early 20th centuries. After the change, lawyers
believed that natural law plays no role in our legal system. Today, lawyers still
consider murder to be wrong, of course, and they would deplore as grossly defi-
cient the legal system of any nation that fails to prohibit murder. But they would
say that murder is not illegal in that nation. Lawyers once believed that some of
the rules of our legal system were not created by humans. They now believe that
all the rules of the legal system are created by humans. In 1850, when a lawyer
spoke in court, it would have been entirely normal for the lawyer to discuss the
law of nature alongside statutes and court decisions as acknowledged sources
of law. Today, if a lawyer tries to discuss natural law in court, the judge will look
puzzled, and opposing counsel will start planning the victory party. Natural law
is no longer a part of a lawyer’s toolkit.
The Decline of Natural Law. Stuart Banner, Oxford University Press (2021). © Oxford University Press.
DOI: 10.1093/ oso/ 9780197556498.003.0001