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Natural Law in Court: A History of Legal Theory in Practice
The theory of natural law grounds human laws in the universal truths of God’s creation. Until very recently, lawyers in the Western tradition studied natural law as part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law’s foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War.
R. H. Helmholz sees a remarkable consistency in how English, Continental, and early American jurisprudence understood and applied natural law in cases ranging from family law and inheritance to criminal and commercial law. Despite differences in their judicial systems, natural law was treated across the board as the source of positive law, not its rival. The idea that no person should be condemned without a day in court, or that penalties should be proportional to the crime committed, or that self-preservation confers the right to protect oneself against attacks are valuable legal rules that originate in natural law. From a historical perspective, Helmholz concludes, natural law has advanced the cause of justice.
R. H. Helmholz sees a remarkable consistency in how English, Continental, and early American jurisprudence understood and applied natural law in cases ranging from family law and inheritance to criminal and commercial law. Despite differences in their judicial systems, natural law was treated across the board as the source of positive law, not its rival. The idea that no person should be condemned without a day in court, or that penalties should be proportional to the crime committed, or that self-preservation confers the right to protect oneself against attacks are valuable legal rules that originate in natural law. From a historical perspective, Helmholz concludes, natural law has advanced the cause of justice.
- GenresLaw
288 pages, Hardcover
First published June 8, 2015
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About the author
R.H. Helmholz
25 books14 followersR.H. 'Dick' Helmholz, Ph.D. (Medieval History, University of California at Berkeley, 1970; LL.B., Harvard Law School, 1965; A.B., French Literature, Princeton University, 1962) is the Ruth Wyatt Rosenson Distinguished Service Professor of Law at The University of Chicago Law School.
In the course of his career, he has been awarded a Fulbright Scholarship, a Guggenheim Fellowship, and an Alexander von Humboldt Research Prize. In the academic year 2000–1, he served as Arthur Goodhart Professor of Law in Cambridge University, where he was also elected to a fellowship at Gonville and Caius College. He is a Fellow of the American Academy of Arts and Sciences, a Fellow of the Medieval Academy of America, a Member of the American Law Institute, and a Corresponding Fellow of the British Academy.
His teaching interests have been centered in the law of property and in various aspects of natural resources law. His research interests have been concentrated in legal history. In the latter, his principal contribution has been to show the relevance of the Roman and canon laws to the development of the common law.
In the course of his career, he has been awarded a Fulbright Scholarship, a Guggenheim Fellowship, and an Alexander von Humboldt Research Prize. In the academic year 2000–1, he served as Arthur Goodhart Professor of Law in Cambridge University, where he was also elected to a fellowship at Gonville and Caius College. He is a Fellow of the American Academy of Arts and Sciences, a Fellow of the Medieval Academy of America, a Member of the American Law Institute, and a Corresponding Fellow of the British Academy.
His teaching interests have been centered in the law of property and in various aspects of natural resources law. His research interests have been concentrated in legal history. In the latter, his principal contribution has been to show the relevance of the Roman and canon laws to the development of the common law.
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July 7, 2021
Helmholz does a fine job with what he sets out to accomplish. His limited scope was the natural law’s impact on legal training and practice in three different places and at certain time periods (Continental Europe from 1500-1800; England for the same time period; and America from 1776 to 1860). And his goal for the book was to show that natural law has been used in court and in everyday law practice and has had an impact on legal decisions in these three settings.
After reviewing the record, his conclusion is that natural law did have a role in legal training and law practice and has been used in court. But natural law's influence was more at times and less at others, and its influence waned significantly in the United States over the years discussed, and its role in legal training for some students in England and the United States is mainly speculative, etc., etc. With all the qualifications (which are not developed and are intentionally excluded from the book's scope), the thesis loses much of its punch, except to support the elemental claim: that those who argue that natural law has never played a role in the actual practice of law are mistaken. And this is certainly a necessary point, but it's a very minimal one.
After reviewing the record, his conclusion is that natural law did have a role in legal training and law practice and has been used in court. But natural law's influence was more at times and less at others, and its influence waned significantly in the United States over the years discussed, and its role in legal training for some students in England and the United States is mainly speculative, etc., etc. With all the qualifications (which are not developed and are intentionally excluded from the book's scope), the thesis loses much of its punch, except to support the elemental claim: that those who argue that natural law has never played a role in the actual practice of law are mistaken. And this is certainly a necessary point, but it's a very minimal one.
Displaying 1 of 1 review