Delivering the Goods: Herein of Mead, Delegations, and Authority

Abstract

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, the achievement and exercise of authoritativeness. Authoritativness is the gateway by which goods enter, including through human law. The article develops these points by showing their place in United States v. Mead (2001). The article was prepared for the January 2009 meeting of the AALS Section on Law and Religion, co-sponsored by the Section on Jewish Law and the Section on Islamic Law.

Keywords: delegation, authority, Mead, natural law, obedience, deference, interpretation, religion, judicial review