The Decline of Natural Law and the Rise of Exclusive Positivism

Abstract

Stuart Banner’s "The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped" examines a major change in American legal thought that occurred between the nineteenth and twentieth centuries. Prior to this change, lawyers regularly relied on natural law; afterwards, natural law dropped out of the lawyer’s toolkit. In this review of Banner’s book, I argue that his account of the decline of natural law has important implications for both the substance and methodology of general jurisprudence. On the one hand, his account provides a plausible history of how American lawyers’ concept of law gradually came to cohere with exclusive positivism. On the other hand, his account suggests that our concept of law is more parochial than it is sometimes assumed to be, thus highlighting the limits of conceptual analysis for general jurisprudence.

Keywords: natural law, legal positivism, exclusive legal positivism, general jurisprudence, conceptual analysis