"[...] 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
Friday, February 13, 2004
Litigation and Natural Law
Russell Hittinger on Judicial Interpretation of Natural Law: