Article
A Quandary in Law? A (Qualified) Catholic Denial
San Diego Law Review
(2007)
Abstract
A contribution to the second law review symposium dedicated to Steven Smith’s Law’s Quandary (Harvard 2004), this paper asks whether the “quandary” in which Smith finds modern law and jurisprudence is not, at least in part, the consequence of misunderstanding the classical natural law jurisprudence. The paper advances an interpretation of natural law according to which the natural law is the human person’s “participation” in the eternal law itself, with literally cosmic consequences for how we understand the ends and measures of human lawmaking. Mounting an argument against Justice Scalia’s thesis that “God applies the natural law,” the paper goes on to explore the consequences of the natural law’s being, first, available to all rational persons and, second, capable of coercive implementation only according to the norms of positive law that respect the common good. The paper concludes that while we might be in an “ontological” quandary in law today, we are not – because we have in fact received the natural law – in an “ontic” quandary.
Disciplines
Publication Date
Winter 2007
Publisher Statement
Law's Quandry, Symposium Issue on Steven Smith, 2007
Citation Information
Patrick McKinley Brennan, A Quandary in Law? A (Qualified) Catholic Denial, 44 San Diego L. Rev. 97 (Symposium Issue) (2007). (Second Symposium contribution on Steven Smith, Law's Quandary (Harvard U. Press 2004)).(Invited).
Available at: http://www.heinonline.org/HOL/Page?handle=hein.journals/sanlr44&id=103&collection=journals&index=