Presently Absent, or Absently Present? The Curious Condition of Natural Law

Abstract

Jurists and scholars today—those interested in “original meaning,” for example—routinely raise questions and make claims about law from the founding period, and from the nineteenth century. But did lawyers from those earlier times understand law–what law is, so to speak—in the same ways that we do? In this highly readable and illuminating book, legal historian Stuart Banner shows how during the first century of the Republic’s existence, lawyers routinely resorted to something they thought of as “natural law.” Then, from about the end of the nineteenth century, natural law mostly disappeared. Why did that happen? Banner’s discussion of the “disappearance” question is illuminating as well–illuminating but also, in its final diagnosis, curiously unsatisfactory. There is something elusive here, it seems—something that Banner perceives but does not quite manage to pin down.

Keywords: natural law, legal history, original meaning, legal formalism