Law in Flux: Philosophical Hermeneutics, Legal Argumentation, and the Natural Law Tradition

Abstract

Peter Goodrich describes the plight of contemporary legal theory with concise accuracy: We have abandoned natural law foundations originally constructed in ecclesiastical venues only to find that the project of developing a secular legal language capable of transforming the management of social conflict into questions of technical rationality is doomed to failure. The ascendancy of analytic legal positivism has purchased conceptual rigor at the cost of separating the analysis of legal validity from moral acceptability, but retreat from this stale conceptualism and a return to traditional natural law precepts appears wildly implausible. As a sympathetic critic recently concluded, natural law remains "a curiosity outside the mainstream, regarded mostly as a side-show and not to be taken very seriously." The irrelevance of the natural law tradition in contemporary jurisprudential discourse would appear to be sealed by the "interpretive turn" in legal theory, which in its most general outline asserts that universal and eternal principles have been replaced by hermeneutical fluidity and historical contingency. In the wake of the interpretive turn it is reasonable to expect that legal theorists will turn not to the natural law tradition, but to radical postmodern and deconstructive styles of theorizing in their effort to move beyond legal positivism. The natural law tradition appears to be hopelessly confused and anachronistic in the brave new world of postmodern legal theory, in which law is constrained neither by an objective moral order of nature nor by the logical rigor of conceptual analysis and sociological description.