A New Natural Law Reading of the Constitution

• Author: Santiago Legarre
• Position: LL.B., Universidad Católica Argentina; M.St., Oxford; Ph.D., Universidad de Buenos Aires. Professor of Law, Universidad Católica Argentina; Independent Researcher, CONICET (Buenos Aires); Visiting Professor, Notre Dame Law School (Indiana) and Strathmore Law School (Nairobi).
• Pages: 877-905

A New Natural Law Reading of the Constitution

Santiago Legarre*

TABLE OF CONTENTS

Introduction .................................................................................. 877

I. What Natural Law Is Not ............................................................. 879

II. Natural Law for Dummies ............................................................ 885

III. The Constitution in the Light of Natural Law .............................. 892

Conclusion .................................................................................... 903

INTRODUCTION

The title of this Article borrows from the subtitle of one of Ronald

Dworkin’s last books, Freedom’s Law: The Moral Reading of the

Amer ican Constitution.1 This Article argues that the United States

Constitution—or any constitution, for that matter—should be interpreted

“morally,” as Dworkin posits; but, forgoing Dworkin’s company, this

Article argues that the morality used in this interpretative venture, which

he oddly called “interpretive,”2 ought to be natural law morality.

To begin, natural law requires an explanation. To do so, it is useful to

explain first what natural law is not. Given the unending confusions, both

terminological and conceptual, this clarification is virtually necessary, and

is tackled in Part I, which is followed by an overview in Part II of what

Copyright 2018, by SANTIAGO LEGARRE.

* LL.B., Universidad Católica Argentina; M.St., Oxford; Ph.D.,

Universidad de Buenos Aires. Professor of Law, Universidad Católica Argentina;

Independent Researcher, CONICET (Buenos Aires); Visiting Professor, No tre

Dame Law School (Indiana) and Strathmore Law School (Nairobi). Many thanks

to the editors of the Louisiana Law Review and to Hector Legarre (in pace), Paul

Baier, John Baker, Michael Bradley, Patrick Button, Madeline Rose Gillen, Sam

Gregg, Mary Joseph, Dwight King, Pat Martin, Gregory Mitchell, Larry Solum,

Jim Stoner, Lee Strang, and Olivia Zicari Clausen for excellent feedback. This

Article is dedicated to the memory of the late Cheney Joseph, Jr.

1. See RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE

AMERICAN CONSTITUTION (Oxford Univ. Press 1996).

2. Id. at 12.

878 LOUISIANA LAW REVIEW [Vol. 78

natural law means for the purposes of this Article. Guided by the classical

tradition,3 this Part also attempts to clarify how natural law connects to

positive law. In light of the diverse modes of connection between natural

and positive law, Part III argues that natural law can factor into

constitutional interpretation in subtle but significant ways. More

specifically, this Article suggests that natural law has two different levels

of presence in constitutional law. The interpretation of constitutional

norms, this Article argues, is more moral with regard to one of the two

modes of connection and more technical with regard to the other mode.

Finally, this Article offers some conclusions.

Why “new” natural law? Russell Hittinger coined the expression “new

natural law theory” in his 1987 book A Critique of the New Natural Law

Theory.4 He used the term to describe and, indeed, as he hoped,

delegitimize a school of thought that has in Germain Grisez its founder

and architect,5 John Finnis a main builder, and Robert P. George its more

recent—and most exuberant—voice.6 But these three scholars—as well as

others who purportedly fall under the related label “new natural lawyers”—

never seemed to like the term “new natural law theory.”7 In an apparent

compromise, Finnis accepted an alternative, not altogether different brand:

the new classical natural law theory.8

3. See infra note 8.

4. RUSSELL HITTINGER, A CRITIQUE OF THE NEW NATURAL LAW THEORY

(Univ. of Notre Dame Press 1987).

5. According to a self-declared member of the “new natural law” crew, “new

natural la w” is “the name given a particular revival and revision of Thomistic

Natural Law theory,” a revision “initiated in the 1960s by Germain Grisez.”

CHRISTOPHER O. TOLLEFSEN, THE WITHERSPOON INST., The New Natura l Law

Theory 1, 4 n.1 (2012), http://www.nlnrac.org/contemporary/new-natural-law-

theory#_ednref1 (last visited Oct. 16, 2017) [https://perma.cc/MG2X-NS2Y] .

6. See ROBERT P. GEORGE, MAKING MEN MORAL (Oxford Univ. Press 1993).

7. After recognizing t hat Finnis’s work with Germain Grisez and Joseph

Boyle in developing the understanding of practical reasoning has come to be

known as the “new” natural law theory, Robert P. George argues, in his o pening

contribution to Finnis’s festschrift, that the expression “new natural law theory”

is problematic. Robert P. George, Intro duction: The Achievement of John Finnis,

in REASON, MORALITY, AND LAW: THE PHILOSOPHY OF JOHN FINNIS 1, 6 n.15

(John Keown & Robert P. George ed s., 2013) [hereinafter REASON, MORALITY,

AND LAW]. Finnis’s own sharp reservations regarding the label also are featured

there. JOHN FINNIS, Reflections and Responses, in REASON, MORALITY, AND LAW,

supra, at 468 n.31.

8. John Finnis, Natura l Law: The Classical Tradition , in THE OXFORD

HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 1, 5 (Jules Coleman &

Scott Shapiro eds., 2002). In 1991, Finnis already had alluded to “the new