"[...] preoccupation with judicial appeals to natural law can easily fall into the trap that Aquinas himself discussed. Recall that in the passage cited earlier Aquinas pointed out that insofar as a judge proceeds case by case the laws are apt to be disconnected. The business of a judge is litigation, and, on the whole, litigation is not the best context for taking stock of what the natural law requries: (1) litigation gives the judge little time for reflection; (2) it moves along according to adversarial procedures, which are not the best way to develop a systematic position on the moral quality of laws; and (3) the interests of the various parties are usually narrowed so drastically that it is difficult to find generalizable principles for the common good.
-Russell Hittinger, "Natural Law in the Positive Laws," The First Grace
An Amateur Classicist's Review of Political Philosophy, Theology, and Literature, with Occasional Reflections on the Age That Is Passing
Friday, February 13, 2004
Litigation and Natural Law
Russell Hittinger on Judicial Interpretation of Natural Law:
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