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The Limits of Natural Law Originalism

Barczentewicz, Mikolaj (2018) The Limits of Natural Law Originalism Notre Dame Law Review, 93 (3). pp. 115-130.

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In “Enduring Originalism,” Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis. Their argument to that effect is powerful and constitutes a welcome addition both to natural law theory and to originalist theory. However, the authors chose to present their account as a superior alternative to, or modification of, “positive” (“original-law”) originalism of Stephen Sachs and William Baude. It is that aspect of the paper that I focus on in this short essay. Contrary to their strong claims in that direction, Professors Pojanowski and Walsh are far from establishing that positive originalism is deficient and that that their version of natural-law-based originalism offers a plausible alternative to positivist originalism. There is also a worry that, despite professing sympathy towards the “positive turn” in originalism, “Enduring Originalism” is at its core an account of what Professors Pojanowski and Walsh think the law should be, and not what the law is; precisely the kind of argument the positive turn militates against.

Item Type: Article
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
Date : 15 April 2018
Copyright Disclaimer : © 2017 Mikołaj Barczentewicz. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to Notre Dame Law Review Online, and includes this provision in the copyright notice. Citation: Barczentewicz, Mikołaj, The Limits of Natural Law Originalism. 93 Notre Dame L. Rev. Online 115
Uncontrolled Keywords : Originalism; Constitutional interpretation; Jurisprudence; Legal positivism; Natural law
Related URLs :
Depositing User : Clive Harris
Date Deposited : 21 Aug 2017 13:40
Last Modified : 20 Jun 2018 11:30

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