02 March 2017

"Natural Law in Court"

Cover: Natural Law in Court in HARDCOVER
I'm looking forward to meeting up again with Richard Helmholz, author of "Natural Law in Court: A History of Legal Theory in Practice" (2015), at the Religious Critiques of Law conference at Pepperdine University School of Law.

"Natural Law in Court" has been reviewed here and here. The purpose of this post is to let even more folks, particularly lawyers, know about this splendid (and relatively brief) work.

Helmholz set out to answer a basic question: for all the philosophical and theological to-do about natural law, did it ever actually make an impact on the ground, i.e., in court? Helmholz thus surveyed the legal literature of three legal communities over the course of roughly 300 years. The communities were Continental Europe, England, and the United States. The period examined begins with 1500 and ends around 1800 for the first two communities and in the late 19th century for the U.S.

His conclusions?
This survey of the relevant evidence ... proves that natural law was carried into practice in the courts of each of the three geographical areas surveyed. ... At least six specific conclusions about its use emerge from a consideration of the evidence.
First, in all three geographical area surveyed, future lawyers learned something about the basic characteristics of the law of nature as part of their early training. ...
Second, once launched in their careers, some lawyers brought what they had learned about the law of nature into their professional lives. They used it. ...
Third, the law of nature was a common possession of lawyers in the world of Western jurisprudence. ... This consistency [across legal communities and through time] is remarkable ...
Fourth, in actual cases the law of nature was almost always treated as a source of positive law, not as a rival or alternative to it. ... The fact that an institution was contrary to the law of nature did not in itself make the institution unlawful. ...
Fifth, throughout its history, the law of nature has been a modest force for good. ... It was not a cure-all, but it did promote the cause of justice. It helped cement principles of right and wrong in the minds of lawyers and consequently in the decisions made in courts of law. ... Natural law served as a useful vehicle in securing many results we now regard as self-evident.
Sixth, the history of natural law's use in courts does suggest that it would be a mistake to claim too much for it. ... 
Not nothing but not everything or even as much as might be hoped-for characterized the history of natural law in important Western legal systems. Justice is a virtue but so is modesty about justice.

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