Source: Dissertation Abstracts International, Volume: 78-11(E), Section: A.

Adviser: Jennifer Ann Herdt.

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"Common law," first-year law students might tell us, is law made by judges. "Natural law," say its proponents, is higher law grounded not in the acts of human lawmakers (judges, for example), but instead in human reason, nature, or the mind or will of God. Few today think one has anything to do with the other. But this was not always so. This study argues that, from colonial America through the nineteenth century, the common-law tradition was articulated, even constituted, by reference to the theological and philosophical tradition of natural law, not least in the changing landscape of American legal education.

Telling this story counters the standard view that common law is essentially positivistic---detached from moral considerations---and adds to recent work on the history of the natural-law tradition, which has hitherto concentrated on philosophy and theology, not the law of rules and cases, crimes and contracts. But telling this story does not merely show unexplored links between two bounded traditions of law (common and natural). Rather, it also shows that the contemporary understanding of the terms "common law" and "natural law" must change in order to account for the American experience of the concepts' interrelationship. Such change raises possibilities for Christian and other normative engagements of the common-law tradition, and offers new resources for interdisciplinary conversations on law and religion.

The study proceeds in two parts. PART I analyzes the two primary sources for natural-law thinking in American common law (CHAPTERS 1 and 2). PART II evaluates the uptake and interpretation of these sources in American professional legal education through the nineteenth and early twentieth centuries (CHAPTERS 3, 4, and 5).

CHAPTER 1 considers early American colleges and their broader intellectual cultures, Puritan and Revolutionary. The colleges were a source of natural-law reasoning in America, and a site for its negotiation with common law. The chapter argues: first, that attending to this history provides distinctive new ways of talking about law; second, that the natural law of early America differs significantly from today's most prominent accounts; and, third, that any contemporary embrace of a natural-law understanding of common law has not just legal, but theological and moral, consequences.

CHAPTER 2 examines the other significant source: the American reception of William Blackstone's Commentaries on the Laws of England. Blackstone ordered and organized common law. That he did so using natural-law principles shaped Americans' assumptions that common law accords with reason. The chapter argues: first, that a natural-law account of common-law has consequences for how to structure, justify, and critique a body of law; second, that Blackstone's natural law differs from today's familiar theological accounts; and, third, that Blackstone's natural law is "modest," partially assuaging a fear that natural law places human law beyond criticism.

CHAPTER 3 shows how Blackstone's Commentaries served as the primary educational basis for the new professional law schools, such as Harvard Law School under Joseph Story, but also that natural law quickly receded from instruction, as it was subsumed into various common-law doctrines. Natural law, then, was historicized and relativized, at least in relationship to common law. This chapter argues: first, that Story's writings distinctively relate reason and history; second, that Story's natural law permeates the common law, even while its decisiveness diminishes; and, third, that Story suggests what Christian reflection can add to natural-law accounts of common law.

CHAPTER 4 explores Christopher Columbus Langdell's late-nineteenth century establishment of "legal science" and introduction of the "case method," whereby precedent governed the common law. The chapter argues: first, that Langdell offers an inductionist account of natural law; second, that the question of justification haunts induction; and, third, that Langdell prompts consideration of for whom, and on what basis, any account of law is justified.

CHAPTER 5 investigates two fundamental breaks with the natural-law tradition: first, Oliver Wendell Holmes, Jr.'s skeptical treatment of law's nature, and even morality itself; and second, the American legal realists' vision of common law as secular, indeterminate, and non-objective. The chapter argues: first, that Holmes and the realists influentially shaped American legal education; second, that contemporary proponents of natural-law treatments of the common law must meet the challenges raised by Holmes and the realists; and, third, that employing immanent critique clarifies that, while Langdell's legal science is vulnerable to realist criticism, many accounts of natural law are more robust.

The EPILOGUE returns to the standard depictions of "common law" and natural law," now shown as distorted, and explores new possibilities for natural-law treatments of common law.