Not Even Scalia Was Sufficiently Conservative |
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Not Even Scalia Was Sufficiently Conservative
The problem lay in his hesitancy toward a jurisprudence grounded in natural law.
E. Jeffrey Ludwig | May 17, 2026
The view that the origins of our law is based on natural law is a view of jurisprudence that sadly has been supplanted in most of our major law schools. It came under attack by Professors Ronald Dworkin, Lon Fuller, H.L.A. Hart, and others, like John M. Finnis, who rejected the Blackstone philosophy of jurisprudence based upon natural law. (Finnis didn’t wholly reject it, but he modified it.) Blackstone had written, “Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Natural law interpretations imply an Almighty God, Creator of Heaven and Earth, and thus universal laws emanating or commanded by the Godhead that overlap manmade laws control those manmade laws.
So, absent natural law, what makes a law lawful — that is, worthy of being obeyed qua law? Even if one believes that social norms or standards exist to which a law must conform (thus making a law deserving of being obeyed and not merely a required and enforced norm), there is no justification outside sociological relativism for the law. Law and order, directed as an ultimate requirement for society, cannot be put forward as “ultimate” — i.e., not arbitrary — if it merely exists to uphold norms relative to specific times and places. If there is no natural law, then a society’s laws are to some degree arbitrary and to some degree are relativized and evolving. That is what liberal activist jurors contend, and........