The Last Testament of Justice Scalia: On Aquinas and Law

42 Pages Posted: 17 Nov 2020

Date Written: September 8, 2020

Abstract

On January 7, 2016, Justice Antonin Scalia delivered his last public lecture, titled “Saint Thomas Aquinas and Law.” Analysts have criticized Scalia for having an anachronistic reading of Aquinas. But those analysts had missed seeing that Scalia was searching for a deeper meaning instead of chastising Aquinas’s theory of law. This article investigates whether Aquinas’s theological insights and Scalia’s jurisprudence show similar traits. This article argues that although Scalia’s jurisprudence is not identical with Aquinas’s theology, their positions are much closer than people would immediately imagine. They shared similar views on the limits of judicial authority and the need to find a balance between the private goods and the common good. This article postulates that in his last lecture, Scalia was expressing his fear of subjectivity in the process of judging, in which Aquinas theory of interpretation might justify the volitional status of legal interpretation. Nevertheless, Aquinas believed that a virtuous judge must not seek honor and glory, but rather to direct people toward the common good. Thus, both Aquinas and Scalia shared a similar view that a reasonable judge must avoid sentimentality and personal values in judging.

Keywords: Justice Antonin Scalia, Saint Thomas Aquinas, Judge Amy Coney Barrett, Virtue Jurisprudence, Statutory Interpretation, Originalism, Textualism, Natural Law, Common Good.

Suggested Citation

Hendrianto, Stefanus, The Last Testament of Justice Scalia: On Aquinas and Law (September 8, 2020). Notre Dame Journal of Law, Ethics and Public Policy, Vol. 34, No. 1, 2020, Available at SSRN: https://ssrn.com/abstract=3701362

Stefanus Hendrianto (Contact Author)

Pontifical Gregorian University ( email )

Piazza della Pilotta 4, 00187
Rome
Italy

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