The Decline of Natural Law and Custom

Abstract

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.