Abstract
Natural law is undergoing a revival in constitutional theory. What makes this surprising is that it has been largely dormant for over a century. A major factor that contributed to its decline was conflicting accounts of natural law and the inability of jurists to identify with certainty what it requires. For their project to get off the ground, contemporary proponents of natural law must address this question. This Article raises an even more challenging set of related issues that natural lawyers have never fully reckoned with: the most celebrated natural law thinkers—Aristotle, Aquinas, Pufendorf, Vitoria, Grotius, and many others—made natural law declarations that are now acknowledged to be errors. Aquinas, for instance, justified slavery, the subordination of women, the death penalty for heretics, and the prohibition of interest on loans. Many bad things were done in the name of natural law. Centering on errors and wrongs and their implications penetrates to the very core of natural law theory. This analysis shows that jurists cannot establish a natural law principle simply by citing a string of natural law authorities. They must convincingly demonstrate that it is true. And as I explain, this formidable requirement has never been accomplished. What makes this critical examination especially powerful is that it relies on natural lawyer’s own arguments. I take seriously their assertion that natural law is objectively true, immutable, and universally binding—and I hold them to it. To show that natural law claims are not true and immutable, I convey errors by natural law giants and draw out how these errors have been explained. Then, using these same explanations, I demonstrate that current natural law positions on homosexuality, transgenderism, abortion, contraception, and IVF are susceptible to being overturned as errors. Natural lawyers have been wrong before, the argument goes, and they are likely wrong about these matters as well. Then I articulate another explanation for error—the radical indeterminacy of natural law—showing that natural law positions are always tenuous and subject to revision and repudiation. Finally, I draw out the implications of this analysis for current efforts to incorporate natural law within originalism. The complications are head-spinning, but the bottom line remains the same: first they must convincingly demonstrate that proffered natural law principles and their application are true.
Recommended Citation
Brian Z. Tamanaha,
Natural Law Errors and Wrongs,
91 Brook. L. Rev.
67
(2025).
Available at:
https://brooklynworks.brooklaw.edu/blr/vol91/iss1/2