Eternal law, natural law, and human law

I've posted a new chapter  on the practical, including U.S. constitutional, consequences of taking seriously the Thomistic thesis that the natural law is our participation in the eternal law and is, therefore, a real law, one from which no rational person, not even the human lawmaker we sometimes mistakenly call sovereign, is exempt.  This chapter consolidates and continues some of my earlier work aimed at showing that a natural law account of human law does not per se lead to what is commonly referred to as judicial activism.  My account does, though, exalt the role of the human lawmaker in a way that will perhaps be disturbing to those, such as Justice Scalia, who tend in the direction of a kind of democratic fundamentalism: in leading the multitude to the common good, the lawgiver is doing something God-like.  (Was this perhaps the hidden premise of Justice Stevens's justification of the rule of Chevron?  I think we know the answer).

Those who were present at the Law and Religion Roundtable at Brooklyn Law this past June saw an early version of this chapter.  In response to the helpful comments of several at the Roundtable (especially Andy Koppelman, Kent Greenawalt, Nelson Tebbe, and Steve Shiffrin), I have sharpened my account of why and how the eternal law provides the nonnegotiable definition of all law, including human law.  My account still won't satisfy those who wish to call an unjust "law" a law, but I think I've done better now at showing why Thomas was right -- and why even those of us in the Anglo-American jurisprudential tradition would do better -- to call such a thing a mere "document."

 

Update: The original link I provided didn't work.  I believe the problem's been corrected.