I don't like the sound of this.  If there really is a natural moral law, then democracy is over with.


Because there would be no decisions left for legislators to make.  If they did try to make any, judges would just say "The natural law says" and overrule them.

That's doubly mistaken.  In the first place, there would be plenty of decisions left for legislators to make.


Because only the foundational principles of the natural law are known to all -- only the moral basics.  The remote implications remain to be worked out and fashioned into rules.

But if judges thought the legislators had worked out those remote implications badly, they would invoke natural law to overrule them.

Some might try.  But I suggest that there is only one situation in which it would be allowable for courts to refuse to recognize a legislative act on grounds of natural law -- if the legislature had violated one of the moral basics, for example by punishing the innocent, or by authorizing some people to murder others.  The reason judges could invoke the natural law against legislators in that sort of case is that they know the moral basics every bit as well as legislators do.  But here's the rub:  Judges are not just as good at working out the remote implications of the natural law.  They have no call to refuse to recognize a legislative act in that sort of matter -- much less make law on their own.

Why aren't they just as good at working out the remote implications of the natural law?

Because of the difference in their jobs.  Legislative procedures are adapted to developing general rules; judicial procedures are adapted to applying these general rules to the facts of particular cases.  Courts do not anticipate cases not actually before them; legislatures must anticipate cases not actually before them.  That is what we have them for.

So you're saying that nothing in the natural law forbids the separation of functions.

That's right.  It's perfectly all right for the framers of a constitution to give one job to legislatures and a different job to courts.  I think they should, myself.

So it's okay for legislatures to consider the natural law, but not okay for courts to do so.

That not how I'd put it.

Sorry; I should have said, so it's okay for both courts and legislatures to consider the moral basics -- but only legislatures should consider their remote implications.

That's not quite how I'd put it either.

How would you put it, then?

It's okay for both courts and legislatures to consider the moral basics -- but as to their remote implications, courts should defer to legislatures.

Isn't that what I said?

No.  There is a difference between not considering the remote implications at all, and deferring to the legislature about them.

I don't see why.

How about an example?  Here's how one codification of law explains when contracts are binding and when they aren't – I’ve borrowed it from Charles Rice, who is quoting the Restatement of Contracts, 1932, Section 90:  "A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."  Put more simply --

Never mind, I get it.  Put more simply, if breaking the promise would cause injustice, then the contract is binding.

Correct.  Now suppose that the legislature has enacted that wording into law, and a court has to interpret it.  Do you see a problem?


The legislature hasn't told the court what injustice is.  It expects the court to know that already.

Oh, yes.  But so what?

So even though the court defers to the legislature by accepting the general rule which the legislature has given to it, it may be forced to work out some of the remote implications of the natural law, just to figure out what the legislature means.  But it still accepts legislative intent as the rule.

I see now.

Then you see that nothing about the natural law encourages judges to lose their heads.

Perhaps not.

I would even say that the strongest encouragement to runaway judicial activism is denying the natural law.

A Dialogue on Natural Law, Part 8