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Religion & Law
: Mirror of JusticeA New Essay by MOJ's Patrick Brennan
The Place of 'Higher Law' in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys
Patrick McKinley Brennan
Villanova University School of Law
Georgetown Journal of Law & Public Policy, Forthcoming
Villanova Law/Public Policy Research Paper No. 2009-17
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).
[You can download/print the ssay here.]
Full post as published by Mirror of Justice on July 26, 2009 (boomark / email).
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