natural law
NATURAL LAW
ROBERT P. GEORGE*
Oliver Wendell Holmes, the legal philosopher and judge whom Richard Posner has, with admiration, dubbed “the
American Nietzsche,”1 established in the minds of many people a certain image of what natural law theories are theories of, and a certain set of reasons for supposing that such theories are misguided and even ridiculous. While I have my own reasons for admiring some of Holmes’s work—despite, rather than because of, the Nietzscheanism that endears him to Judge Posner—I think that everything Holmes thought and taught about natural law is wrong. I have elsewhere set forth a detailed critique of Holmes’s thought,2 which I will not repeat here.
Rather, this Article offers a constructive account of what natural law theories are in fact theories of, explains why the idea of natural law and natural rights is far more plausible than people influenced by Holmes have supposed, and shows how natural law theories are similar to and different from leading compet* McCormick Professor of Jurisprudence; Director, James Madison Program in
American Ideals and Institutions, Princeton University. I originally presented this
Article as the 2007 John Dewey Lecture in Philosophy of Law at Harvard Law
School on April 9, 2007. I am deeply grateful to Dean Elena Kagan and the faculty of Harvard Law School for the honor of being invited to return to my alma mater for this occasion. I was introduced to the project of philosophical reflection on law and legal systems, and on the complex web of relationships between law and morality, by my teachers at Harvard: Lewis Sargentich, Charles Fried, Richard
Parker, Henry Steiner, Harold Berman, Dan Coquillette, and Roberto Unger. They launched me on what became my life’s work. I owe them an enormous debt of gratitude, and it is a pleasure to be able to acknowledge it here. Some material in this Article originally appeared in an interview I gave that was published as Natural Law and Human
ROBERT P. GEORGE*
Oliver Wendell Holmes, the legal philosopher and judge whom Richard Posner has, with admiration, dubbed “the
American Nietzsche,”1 established in the minds of many people a certain image of what natural law theories are theories of, and a certain set of reasons for supposing that such theories are misguided and even ridiculous. While I have my own reasons for admiring some of Holmes’s work—despite, rather than because of, the Nietzscheanism that endears him to Judge Posner—I think that everything Holmes thought and taught about natural law is wrong. I have elsewhere set forth a detailed critique of Holmes’s thought,2 which I will not repeat here.
Rather, this Article offers a constructive account of what natural law theories are in fact theories of, explains why the idea of natural law and natural rights is far more plausible than people influenced by Holmes have supposed, and shows how natural law theories are similar to and different from leading compet* McCormick Professor of Jurisprudence; Director, James Madison Program in
American Ideals and Institutions, Princeton University. I originally presented this
Article as the 2007 John Dewey Lecture in Philosophy of Law at Harvard Law
School on April 9, 2007. I am deeply grateful to Dean Elena Kagan and the faculty of Harvard Law School for the honor of being invited to return to my alma mater for this occasion. I was introduced to the project of philosophical reflection on law and legal systems, and on the complex web of relationships between law and morality, by my teachers at Harvard: Lewis Sargentich, Charles Fried, Richard
Parker, Henry Steiner, Harold Berman, Dan Coquillette, and Roberto Unger. They launched me on what became my life’s work. I owe them an enormous debt of gratitude, and it is a pleasure to be able to acknowledge it here. Some material in this Article originally appeared in an interview I gave that was published as Natural Law and Human