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The
Relation Between Natural Law and Positive Law in American
Judicial Review
Christopher
Wolfe
Marquette
University
There was an early “temptation”
of American judges to enforce the natural law directly by
judicial review (i.e., striking down laws contrary to natural
law), the classic expression of which was Justice Samuel Chase’s
opinion in Calder v. Bull. This approach (as
Justice James Iredell–who believed in natural law as much
as Justice Chase–pointed out in another opinion in the case)
was erroneous, because the implications of natural law for
positive law cannot always be deduced in a relatively straight-forward
way.
The failure to realize the problem of the gap between natural
law principles and positive law applications of principle
eventually caused serious problems in American law and politics,
especially with respect to property rights. During the period
1890-1937 the American Supreme Court engaged in considerable
judicial activism, extending too broad a protection to property
rights . This was wrong, not because property rights are unimportant
(they certainly are), but because it was wrong to think that
judges should have the power directly to enforce property
rights by judicial review, even in the absence of specific
constitutional prohibitions. Moreover, the courts tended
to overstate property rights as well. What the exact scope
of property rights is, and what the proper limits on property
rights are, are complex questions to which the general provisions
of the American Constitution offer few answers. Accordingly,
those questions need to be carefully worked out in the legislative
process.
This does not mean that natural law is
irrelevant when dealing with complex issues such as the form
and scope of property rights (just because judges are not
directly enforcing it). The legislators dealing with
such issues should be well-grounded in broad natural law principles,
which will help them make the appropriate prudential judgments
they need to make.
The general principles that emerge from
a study of this aspect of American legal history, then, are
first, that natural law is necessary as a foundation for positive
law, but second, that natural law does not always provide
clear guidance or direct commands for positive law. The extent
of guidance provided by natural law for positive law will
vary with the nature of the problem. For example, property
rights and economic regulation generally are areas in which
there is considerable leeway for people who share the same
natural law principles to differ about the application of
those principles. On the other hand, areas involving
fundamental principles of human dignity, such as abortion
and euthanasia, may have more direct and clear implications
for positive law, while still leaving certain questions to
prudential determination.
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