Skip to main content Accessibility help
×
Hostname: page-component-5c6d5d7d68-wp2c8 Total loading time: 0 Render date: 2024-08-23T14:58:00.983Z Has data issue: false hasContentIssue false

4 - Subsuming Natural Law into Common Law

Joseph Story

Published online by Cambridge University Press:  05 April 2019

Andrew Forsyth
Affiliation:
Yale University, Connecticut
Get access

Summary

Blackstone’s Commentaries served as the primary educational basis for newly emerging proprietary schools and, from 1817, university law schools, such as Harvard’s under the leadership of Joseph Story. Yet, natural law quickly receded from instruction, even in the teachings and writings of Story, a champion of natural-law reasoning in the common law. As American common law was worked out in the early nineteenth century, natural law was subsumed into its details; except in rare circumstances—notably in the arena of international law—common law less frequently appealed to natural law, for judges and jurists could now turn to the developing body of principles and precedents constitutive of American common law. Not that this change entailed a rejection of natural law. Story’s scholarly and judicial writings show that natural law could remain central to the animating vision and moral purpose of common law even when it was not explicitly invoked. This natural law refers to the rules of conduct humans know from their status as dependent and social beings. It is understood by reason, but better known through revelation. In its legal treatment, however, it can admit of exceptions and even be passed over in favor of other interests. Unlike in its usual interpretation by contemporary critics and proponents, then, Story’s natural law is exemplary of the ways in which natural law can be historicized and relativized, at least in its relationship to common law. Natural law was known in the historical details of the positive law: specifying duties; serving as a yardstick, from which positive laws can deviate only so far; acting as a limiting point; furnishing rights; classifying and justifying branches of the law; and forming a source of law, albeit one among several.
Type
Chapter
Information
Common Law and Natural Law in America
From the Puritans to the Legal Realists
, pp. 70 - 104
Publisher: Cambridge University Press
Print publication year: 2019

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×