The Explosion in Law Publishing

This chapter discusses the rapid proliferation of case reporting that took place in the 19th century. There were few published court opinions available to lawyers in the early part of the century. Lawyers necessarily grounded their arguments on broad principles, including principles of natural law. But by the century’s end, lawyers complained that they were drowning in reported cases. It was a common observation in the second half of the century that the glut of published opinions had changed the nature of law practice. Precedents had pushed principles aside. Natural law accordingly began to play a smaller role in litigation.

Substitutes for Natural Law

This chapter offers a fresh perspective on some familiar aspects of the legal thought of the late 19th and early 20th centuries, by connecting them to the decline of natural law. Much of what we now call classical legal thought can be understood as the profession’s attempt to find a substitute for natural law, either by replicating the method of natural law with principles found elsewhere than in nature or by bringing natural law into the courtroom indirectly through positive law. At the same time, the decline of natural law led to the emergence of the view that judges are makers, not finders, of law.

The Adoption of Written Constitutions

This chapter traces the effect of 19th-century constitutional thought on the decline of natural law. Written constitutions were an American innovation with no direct parallel in the English legal tradition. Natural law had long been understood as a constraint on legislation, but constitutions served the same function, which raised the question whether American judges had the authority to invalidate legislation that conflicted with natural principles rather than written constitutional text. In the course of this debate, American lawyers voiced their first sustained critiques of the use of natural law within the legal system. The adoption of written constitutions in the late 18th century thus lay the groundwork for the eventual disappearance of natural law from the legal system.

The Separation of Law and Religion

This chapter discusses an important change in lawyers’ understanding of the relationship between the spheres of law and religion during the 19th century. In the early Republic these spheres substantially overlapped. Natural law was understood to have been created by God. Christianity was considered to be part of the common law. Americans may not have become any less religious in the 19th century, but they increasingly came to think of religion as part of one’s private, personal life, separate from the public sphere of law. As law and religion separated, the notion that natural law should play a role in the legal system came to seem more and more anomalous.

Echoes of Natural Law

This chapter examines the status of natural law in the legal system over the past century. In law schools, natural law never ceased to be a topic of study. This academic interest in natural law has had almost no effect on the working legal system, where natural law has been relied upon by only the most idiosyncratic of judges and lawyers. The history of our use of natural law has nevertheless continued to exert influence on the legal system, which still contains doctrines and practices that were once based on the law of nature.

The Law of Nature

This chapter explores how natural law worked in the legal system of the 18th and 19th centuries. It discusses how lawyers believed natural law could be discerned, how natural law related to positive law, why natural law seemed so plausible, how natural law figured in legal education, and how natural law was used in practice. Natural law was understood to consist of general principles found in nature, like the principles we call “scientific” laws today. They formed a backdrop against which positive law was enacted and interpreted. These general principles guided courts’ decisions where positive law did not yield a clear answer.

The Decline of Natural Law and Custom

This chapter takes a close look at how natural law and custom virtually disappeared from the legal system in the late 19th and early 20th centuries. These were important changes, because they knocked out the common law’s two traditional foundations. If neither natural law nor custom were to play a role in the legal system, lawyers would have to rethink the grounding of the common law and the nature of common law decisionmaking. Natural law had also been a guide for judges in ascertaining the meaning of statutes and sometimes even in striking them down. Without natural law, lawyers would have to rethink the nature of statutory interpretation.

Introduction

This book is about a fundamental change in American legal thought that took place in the late 19th and early 20th centuries. Before the change, natural law played an important role in our legal system. Lawyers believed that human affairs were governed in significant part by laws of nature, laws that could be discovered in much the same way as the natural laws governing the nonhuman realm. After the change, lawyers believed that all the rules of the legal system are created by humans. This book will explain the functions natural law performed, why lawyers stopped using it, and how those functions came to be performed once natural law was no longer a component of the legal system.

The Two-Sidedness of Natural Law

This chapter examines several divisive issues of the 19th century in which arguments based on natural law were prominent—capital punishment, property rights, the role of women, and slavery. These were highly salient political debates, and they were also issues that often arose in litigation. Participants on both sides framed their arguments in terms of natural law. By the later part of the century, lawyers began to wonder whether, if natural law could be invoked to support both sides of such hotly contested questions, it was too indeterminate to be used in court.

The Common Law

This chapter discusses 18th- and 19th-century lawyers’ understanding of common law, the law found in court opinions. Today lawyers think of the common law as consisting of the opinions themselves, and they think of judges as making the law when they write the opinions. Before the late 19th century, by contrast, lawyers believed that the common law had an existence independent of court opinions, and that the opinions were merely evidence of the law rather than the law itself. Common law was understood in large part as natural law applied to specific situations. It was considered to be something found, not made, by judges.