{"title":"The Decline of Natural Law and Custom","authors":"Stuart Banner","doi":"10.1093/oso/9780197556498.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780197556498.003.0008","url":null,"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.","PeriodicalId":405703,"journal":{"name":"The Decline of Natural Law","volume":"2010 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128201216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Law of Nature","authors":"Stuart Banner","doi":"10.1093/oso/9780197556498.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780197556498.003.0002","url":null,"abstract":"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.","PeriodicalId":405703,"journal":{"name":"The Decline of Natural Law","volume":"41 7","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114046983","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Echoes of Natural Law","authors":"Stuart Banner","doi":"10.1093/oso/9780197556498.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780197556498.003.0010","url":null,"abstract":"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.","PeriodicalId":405703,"journal":{"name":"The Decline of Natural Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115826909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Separation of Law and Religion","authors":"Stuart Banner","doi":"10.1093/oso/9780197556498.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780197556498.003.0005","url":null,"abstract":"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.","PeriodicalId":405703,"journal":{"name":"The Decline of Natural Law","volume":"281 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129170127","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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