Common Law and Natural Law

“… of Christian ethics — can engage the content of American legal rules in Christian terms, while also respecting the pluralism of the United States. ”

Team Members/Contributors

Andrew C. Forsyth Yale University Contact Me

About this dissertation fellowship

“Common law,” many say, is law made by judges. “Natural law,” say its proponents, is higher law grounded not in the acts of human lawmakers, but in human reason, nature, or the mind or will of God. Few today think one has anything to do with the other. I argue to the contrary that, from the common law’s beginnings up until at least the mid-nineteenth century, common law lawyers treated natural law as a source of law. This counters the standard view that common law has always been positivistic — detached from moral considerations — and adds to recent work on the history of the natural law tradition, which has hitherto concentrated on philosophy and theology, not the law of the land. In so doing, the project also renders clearer the embedded traces of natural law logic in certain components of contemporary American law, and reads those components as fulfillments of a revised, Christian understanding of natural law.

As we see with U.S. Supreme Court cases like Obergefell and Hobby Lobby (and, indeed, the controversy surrounding Kim Davis), this is a moment to discuss how to reconcile secular laws with individual and corporate religious freedom. While this debate has attracted excellent treatments from legal scholars and historians, few theologians or Christian ethicists have joined the conversation, and those who have are almost exclusively associated with the political right. This is a conversation I intend to join.

Image Title Year Type Contributor(s) Other Info
Common Law and Natural Law in America: From the Puritans to the Legal Realists 2019 Book Andrew C. Forsyth