ssrn-id1686059

ssrn-id1686059 - VILLANOVA Public Law and Legal Theory...

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Electronic copy available at: http://ssrn.com/abstract=1686059 V ILLANOVA Public Law and Legal Theory Working Paper Series Human Law and Natural Law in the Catholic Tradition: Authoritative Guides to the Good Life by Patrick McKinley Brennan Villanova University School of Law Public Law and Legal Theory Working Paper No. 2010-18 October 2010 Forthcoming in J. Piderit and M. Morey (eds . ) , Teaching the Tradition: A Disciplinary Approach to the Catholic Intellectual Tradition (Oxford University Press, 2011). This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection at http://papers.ssern.com/paper.taf?abstract_id=1686059
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Electronic copy available at: http://ssrn.com/abstract=1686059 Human Law and Natural Law in the Catholic Tradition: Authoritative Guides to the Good Life by Patrick McKinley Brennan John F. Scarpa Chair in Catholic Legal Studies Villanova University School of Law Introduction So saturated is our culture with the appearances of law, we do well to recall that human law is the artifact of a discovered and actualized capacity, not an inevitability, no matter how much Leviathan pushes and shoves and enacts. Our human capacity to make law, moreover, as Friedrich Hayek famously remarked, “has justly been described as among all inventions of man the one fraught with the gravest consequences, more far- reaching in its effects even than fire and gun-powder.” i As the comparison to fire and gun powder suggests, what people refer to as “law” can be destructive. The comparison is not fanciful. “Our modern dictators are masters of legality,” Heinrich Rommen observed. “Hitler aimed not a revolution, but at a legal grasp of power according to the formal democratic processes.” ii We should ask, therefore, as did Rommen, whether enactments that emerge from formal democratic processes yet are destructive of humans and what is good for them rise to the level of law. Some influential voices say yes: whatever the sovereign enacts is law, regardless of its content and consequences. Others counter that justice, not just sovereign will, is necessary if an enactment is to be accounted as law. In its canonical form, this latter account of law states that to the extent a “law” is unjust, it is no law at all. The question, then, reduces to this: On what basis are we to settle the definition of law? When Catholics come to the topic of human law, they do so from within a tradition that recognizes law long before enactments of the sort that concerned Hayek and Rommen. The Bible is permeated with the Hebrew concept of Torah , translated into Greek as nomos and into Latin as lex : law. Drawing in addition from Greek, Roman, and Neo-Platonic philosophical sources, the Church Fathers and later the Scholastics developed the creational doctrine of the “law of nature” or natural law. This they did as they developed a doctrine of the “eternal law,” which St. Augustine defined (in the Contra Faustum
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This note was uploaded on 10/24/2011 for the course SCIENCE PHY 453 taught by Professor Barnard during the Winter '11 term at BYU.

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ssrn-id1686059 - VILLANOVA Public Law and Legal Theory...

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