The Place of 'Higher Law' in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys

50 Pages Posted: 12 Jun 2009

Date Written: June 11, 2009

Abstract

The question of the place of higher law in the ordinary practice of law is even now dogged by the brooding omnipresence caricature. This Article seeks to introduce and apply a philosophically defensible account of natural law, the one defended by Thomas Aquinas, to various problematics of contemporary law and jurisprudence. The Article argues that such higher law is not so high as to be relevant only to sexy constitutional questions, as is often supposed, but to everything we do in law. The Article argues that liberals and conservatives alike should acknowledge both the place of natural law in the positive law and the contingent/prudential limits on judges' authority to speak the natural law directly from the bench. Much of the Article is framed as a response to Steven Smith's Law's Quandary (Harvard 2004).

Keywords: legislation, judging, natural law, natural rights, Justice Scalia, Aquinas, administrative law, practical reason, judicial review

Suggested Citation

Brennan, Patrick McKinley, The Place of 'Higher Law' in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys (June 11, 2009). Georgetown Journal of Law & Public Policy, Forthcoming, Villanova Law/Public Policy Research Paper No. 2009-17, Available at SSRN: https://ssrn.com/abstract=1418083

Patrick McKinley Brennan (Contact Author)

Villanova University School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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