Law as a Means to Human Flourishing: Law, Morality and Natural Law in Policy-Oriented Perspective

Abstract

Odd as the pairing of Natural Law and a form of legal Realism may seem, a number of reasons make the choice quite relevant. First, although most accounts of New Haven’s debut as a legal theory trace it back to McDougal’s and Lasswell’s joint work on legal education reform reacting to Positivism, and to McDougal’s work on the relationship between law and power, reacting to Realpolitik, McDougal’s earliest published work on legal theory seems to have actually been his public diatribe against Natural Law philosopher Lon Fuller, sometimes even omitted in his bibliographies. It was a debate that impacted Policy-Oriented Jurisprudence in ways that set it apart from other post-realist movements. Second, the revival of Natural Law in the Twentieth Century coincided with the ascendency of legal Realism and the decline of Positivism after the Second World War, and produced a continuous exchange between the two movements – at times critical, at times constructive, informing McDougal’s theoretical understanding and sparking interest to this day. Third, both New Haven and Natural Law see law as necessarily embodying an overlap of power and morality to some extent. Lastly, the very theme of this volume highlights the academic and personal legacies of professors John and June Mary Makdisi. Recognizing their intelligent defense of moral reasoning in law – especially in the form of Natural Law, this volume honors them by fostering the exercise of such reasoning.

In what follows, I first introduce what I take to be the two foundational insights of Policy-Oriented Jurisprudence, to wit: that law is a means that should be defined and studied from the perspective of the political superior or sovereign as inherently a type of decision made in social context that is ideally someone’s creative and rational choice. Second, I introduce New Haven’s distinction between theories of law and theories about law as framing its assessment of alternative legal theories, including Natural Law. Third, I explore Lasswell’s and McDougal’s attitude toward Natural Law, as well as the sources from which they derived their understanding of the tradition. Fourth, I describe New Haven’s critical assessment of Natural Law. In doing so, I consider Lasswell’s and McDougal’s indictment of Natural Law as lacking the intellectual tasks necessary for a rational jurisprudence, as well as engage with some of the challenges posed by the latter to New Haven. Lastly, I offer some concluding remarks on the most salient areas of agreement between the two Schools of jurisprudence.