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The Decline of Natural LawHow American Lawyers Once Used Natural Law and Why They Stopped$
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Stuart Banner

Print publication date: 2021

Print ISBN-13: 9780197556498

Published to Oxford Scholarship Online: April 2021

DOI: 10.1093/oso/9780197556498.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 December 2021

The Decline of Natural Law and Custom

The Decline of Natural Law and Custom

Chapter:
(p.167) 7 The Decline of Natural Law and Custom
Source:
The Decline of Natural Law
Author(s):

Stuart Banner

Publisher:
Oxford University Press
DOI:10.1093/oso/9780197556498.003.0008

This chapter takes a close look at how natural law and custom virtually disappeared from the legal system in the late 19th and early 20th centuries. These were important changes, because they knocked out the common law’s two traditional foundations. If neither natural law nor custom were to play a role in the legal system, lawyers would have to rethink the grounding of the common law and the nature of common law decisionmaking. Natural law had also been a guide for judges in ascertaining the meaning of statutes and sometimes even in striking them down. Without natural law, lawyers would have to rethink the nature of statutory interpretation.

Keywords:   natural law, customary law, judge, common law, statute, statutory interpretation, Oliver Wendell Holmes, James Coolidge Carter, John Chipman Gray

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