Law's Quandry, Symposium Issue on Steven Smith, 2007


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.


Constitutional Law | Jurisprudence | Legal History

Date of this Version

April 2007