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Source: This Bibliography is taken from Heinrich A. Rommen, The Natural Law: A Study
in Legal and Social History and Philosophy (1936), trans. Thomas R. Hanley,
ed. Russell Hittinger (Indianapolis: Liberty Fund, 1998).
Heinrich Rommen was a Catholic German lawyer who practised in Germany
during the Weimar Republic before fleeing to the United States in 1938.
He taught in Germany and England before concluding his distinguished
scholarly career at Georgetown University.
Select Bibiography on Natural Law bu Russell Hittinger
Contents
Because the subject of natural law touches at least five
disciplines in the modern academy—law, philosophy, theology,
politics, and history—the literature is extraordinarily
diverse. The best single source is the American
Journal of Jurisprudence (formerly the Natural
Law Forum), which publishes articles, reviews, and
bibliographies reflecting the entire spectrum of natural law themes
and methods. See, for example, the recent bibliography by
Schall.
Schall, James V.
“The Natural Law Bibliography.”American
Journal of Jurisprudence 40 (1995): 157–98.
General Studies
Historical summaries and interpretations of natural law vary
considerably. The book by Rommen’s Italian contemporary,
d’Entrèves, is still useful, but one should get the
1994 edition, which includes new appendices reflecting changes in
the author’s thinking. The encyclopedia entry by Leo Strauss
is perhaps the best summary of Strauss’s approach to the
problem of natural law. Simon’s book, based on his 1958
lectures at the University of Chicago, is a remarkably clear
exposition of the philosophical problems that attend theories of
natural law.
d’Entrèves, A. P. Natural Law. 2d
rev. ed. London: Hutchinson University Library, 1972. Reprint, with
new Introduction by Cary J. Nederman. New Brunswick and London:
Transaction Publishers, 1994.
Gierke, Otto. Natural Law and the Theory of Society. 2 vols.
Cambridge: Cambridge University Press, 1934.
Simon, Yves R. The Tradition of Natural Law: A Philosopher’s
Reflections. Ed. Vukan Kuic. 1965. Reprint, with an
introduction by Russell Hittinger. New York: Fordham University
Press, 1992.
Strauss, Leo.
“On Natural Law.” In Studies in Platonic
Political Philosophy, 137–46. Chicago: University of
Chicago Press, 1983. Originally published in the International Encyclopedia of the Social Sciences, ed.
David L. Sills, 2:80–90.
Ancient
Systematically developed theories of natural law are the work of
medieval and modern minds. But the problem of natural justice was
addressed by Plato, Aristotle, and the Greek and Roman Stoics.
Works by Barker, Miller, Maguire, Spanneut, A. Watson, and G.
Watson treat the concept of justice by nature in the philosophers
of antiquity; Novak studies its development in Jewish thought. In
The Natural Law, Rommen depicts the transition
from classical to medieval theories as being smooth and cumulative.
The essay by Koester, however, suggests that the transition was
more abrupt. He argues that the introduction of biblical ideas of
creation and law into the Graeco-Roman world is chiefly responsible
for the concept of “natural law.” The essay by Mahoney
traces some of the early theological formulations and uses of
natural law.
Barker, Ernest.
“Aristotle’s Conception of Justice, Law, and Equity in
the Ethics and the Rhetoric.” In The Politics
of Aristotle, 362–72. Oxford: Oxford University Press,
1958.
Koester, Helmut.
“The Concept of Natural Law in Greek Thought.” In Religions in Antiquity, ed. Jacob Neusner. Leiden:
E. J. Brill, 1968.
Maguire, G. P.
“Plato’s Theory of Natural Law.”Yale Classical Studies 10 (1947): 151–78.
Mahoney, John, S.J.
“Nature and Supernature.” In Natural Law
and Theology, ed. Charles E. Curran and Richard A. McCormick,
413–63. New York: Paulist Press, 1991.
Miller, Fred D.
“Aristotle on Natural Law and Justice.” In A Companion to Aristotle’s Politics, ed. David Keyt
and Fred D. Miller. Oxford: Basil Blackwell, 1991.
Novak, David.
“Natural Law, Halakhah and the Covenant.”Jewish Law Annual 7 (1988): 43–67.
Spanneut, M.
“Stoicism: Influence on Christian Thought.” In New Catholic Encyclopedia. Vol. 13, 719–21.
New York: McGraw-Hill, 1967.
Watson, Alan.
“The Legacy of Justinian Natural Law.” In Roman Law and Comparative Law, 214–20. Athens:
University of Georgia Press, 1991.
Watson, G.
“The Early History of Natural Law.”Irish
Theological Quarterly 33 (1966): 65–74.
Medieval and Scholastic
Today, the work of Thomas Aquinas is widely regarded as the
preeminent example of medieval natural law theory. For general
studies on Thomas Aquinas, see the books by Chenu and Torrell. By
no means, however, is contemporary Thomism a united front. Adler,
Brock, and Grisez provide three very different interpretations of
Thomas’s natural law theory. The essays and books by Bourke,
Davitt, Dewan, and McInerny treat various Thomistic themes and
issues. While not being explications of Thomas’s texts, the
books by Maritain, Simon, and Messner represent some of the best
neo-scholastic work on natural law in Rommen’s generation.
Murray’s influential collection of essays tries to reconcile
the scholastic tradition with American institutions. Finally, the
essay by Alasdair MacIntyre reflects upon the papal use of natural
law in the recent encyclical Veritatis
Splendor.
Historically, Thomas was only one tributary of medieval natural
law thinking. Works by Berman, Gilby, Gratian (new edition by
Thompson and Gordley), Kuttner, Pennington, Post, and Ullmann
explore the political and jurisprudential themes that formed the
institutional context and background of the philosophical and
theological debates in the medieval schools. Works by Oakley,
McDonnell, Gewirth, and Tuck examine the non-Thomistic channels of
medieval natural law thinking, some of which proved very
influential for the development of modern theories of law and
rights.
Adler, Mortimer.
“A Question About Law.” In Essays in
Thomism, ed. Robert E. Brennan, 207–36. New York: Sheed
and Ward, 1942.
Berman, Harold J. Law and Revolution: The Formation of the Western Legal
Tradition. Cambridge: Harvard University Press, 1983.
Bourke, Vernon.
“The Background of Aquinas’ Synderesis
Principle.” In Graceful Reason, ed. Lloyd
Gerson. Toronto: Institute for Mediaeval Studies, 1983.
———. “The Synderesis Rule and Right
Reason.”Monist 66 (1983): 71–82.
Brock, Stephen L.
“The Legal Character of Natural Law According to St. Thomas
Aquinas.” Ph.D. diss. University of Toronto, 1988.
Chenu,
Marie-Dominique. Toward Understanding Saint
Thomas. Trans. A. M. Landry and D. Hughes. Chicago: Henry
Regnery, 1964.
Davitt, Thomas E. The Nature of Law. St. Louis: B. Herder, 1951.
Dewan, Lawrence.
“St. Thomas, Our Natural Lights, and the Moral
Order.”Angelicum 67 (1990):
285–308.
Donagan, Alan.
“The Scholastic Theory of Moral Law in the Modern
World.” In Aquinas, ed. A. Kenny,
328–29. Notre Dame: University of Notre Dame Press, 1969.
Gewirth, Alan. Marsilius of Padua: The Defender of Peace. Vol. 1 of
Marsilius of Padua and Medieval Political
Philosophy. New York: Columbia University Press, 1951.
Gilby, Thomas. Between Community and Society: A Philosophy and Theology
of the State. London: Longmans, Green and Co., 1953.
———. The Political Thought of
Thomas Aquinas. Chicago: University of Chicago Press, 1958.
Gratian. The Treatise on Laws (Decretum DD. 1–20), with the
Ordinary Gloss. Trans. Augustine Thompson, O.P., and James
Gordley Washington, D.C.: Catholic University of America Press,
1993.
Grisez, Germain.
“The First Principle of Practical Reason: A Commentary on the
Summa Theologiae 94.2.”Natural Law Forum 10 (1965): 168–201.
Kuttner, Stephen.
“The Natural Law and Canon Law.”Proceedings of the University of Notre Dame Natural Law
Institute 3 (1950): 85–116.
MacIntyre, Alasdair.
“How Can We Learn What Veritatis Splendor
Has to Teach.”Thomist 58, no. 2 (1994):
171–94.
Maritain, Jacques.
La loi naturelle ou loi non écrite.
Fribourg: Éditions universitaires Fribourg Suisse, 1986.
McDonnell, K.
“Does William of Ockham Have a Theory of Natural
Law?”Franciscan Studies 34 (1974):
383–92.
McInerny, Ralph.
“The Basis and Purpose of Positive Law.” In Lex et Libertas, ed. L. J. Elders and K. Hedwig,
137–46. Vatican: Pontificia Accadmia Di S. Tommaso E Di
Religione Cattolica, 1987.
Messner, Johannes.
Social Ethics: Natural Law in the Western World.
Trans. J. J. Doherty. St. Louis: B. Herder, 1965.
Murray, John
Courtney. We Hold These Truths. New York: Sheed
and Ward, 1960.
Oakley, Francis.
“Medieval Theories of Natural Law: William of Ockham and the
Significance of the Voluntarist Tradition.”Natural Law Forum 6 (1961): 65–83.
Pennington, K. The Prince and the Law. Berkeley: University of
California Press, 1993.
Post, Gaines. Studies in Medieval Legal Thought. Princeton:
Princeton University Press, 1964.
Simon, Yves R. Philosophy of Democratic Government. Chicago:
University of Chicago Press, 1951.
Torrell,
Jean-Pierre. The Person and His Work. Vol. 1 of
Saint Thomas Aquinas. Trans. Robert Royal.
Washington, D.C.: Catholic University of America Press, 1996.
Tuck, Richard. Natural Rights Theories. Cambridge: Cambridge
University Press, 1979.
Ullmann, Walter. Jurisprudence in the Middle Ages. London: Variorum
Reprints, 1980.
Enlightenment
Although there are family resemblances between premodern and
modern theories of natural law, the Enlightenment era theorists
reworked natural law in the light of new philosophical vocabularies
and under the pressure of new political and institutional forces.
Ruby and Rapaczynski investigate how the new sciences changed the
logic of predicating “law(s)” of “nature.”
Windolph and Bobbio examine the most important figure in that
change, Thomas Hobbes. Leo Strauss’s book recommends itself.
Strauss emphasized the discontinuity of ancient and modern theories
of natural right. There is much disagreement, however, about how
this discontinuity applies to John Locke. Different readings of
Locke are to be found in the books by Grant, Andrew, and
Haakonssen. Haakonssen examines the Enlightenment generally, and
Scottish tradition in particular. Buckle, Schneewind, Waddicor, and
Windolph take up the issue of natural law in various Enlightenment
philosophers.
Andrew, Edward. Shylock’s Rights: A Grammar of Lockian Claims.
Toronto: University of Toronto Press, 1988.
Bobbio, Norberto. Thomas Hobbes and the Natural Law Tradition.
Chicago: University of Chicago Press, 1993.
Buckle, Stephen. Natural Law and the Theory of Property: Grotius to
Hume. Oxford: Oxford University Press, Clarendon Press,
1991.
Chroust,
Anton-Hermann. “Hugo Grotius and the Scholastic Natural Law
Tradition.”New Scholasticism 17, no. 2
(1943): 101–33.
Grant, Ruth. John Locke’s Liberalism. Chicago: University
of Chicago Press, 1987.
Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the
Scottish Enlightenment. Cambridge: Cambridge University Press,
1996.
Rapaczynski,
Andrzej. Nature and Politics: Liberalism in the
Philosophies of Hobbe, Locke, and Rousseau. Ithaca: Cornell
University Press, 1987.
Ruby, Jane E.
“The Origins of Scientific ‘Law.’”Journal of the History of Ideas 47 (1986):
341–59.
Schneewind, J. B.
“Kant and Natural Law Ethics.”Ethics
104 (October 1993): 53–74.
Strauss, Leo. Natural Right and History. Chicago: University of
Chicago Press, 1953.
Waddicor, Mark H. Montesquieu and the Philosophy of Natural Law. The
Hague: Martinus Nijhoff, 1970.
Windolph, F. Lyman.
Leviathan and Natural Law. Princeton: Princeton
University Press, 1951.
Anglo-American
The Atiyah-Summers volume compares English and American legal
cultures, including their respective attitudes toward natural law.
For the English situation, see the works of Hart (1958), Postema,
and Stanlis; for the American, see Brownson, Corwin, Hittinger
(1990), and Tiedeman. The famous debate of a generation ago,
between Fuller and Hart, exemplifies many of the differences
between the English and American minds on natural law.
Concerning the role of natural law in judicial review, see my
remarks in the Introduction on the books by Corwin, Cover, Haines,
and Wright. For the Fourteenth Amendment and the jurisprudence of
due process, see Arkes (1994), Ely, Nelson, and Stevens. The
Barnett volume includes essays on the Ninth Amendment. Arkes
(1990), Dworkin, and Richards agree that the Constitution requires
a moral interpretation but differ considerably on both the
substance and the logic of the morality that ought to guide
jurisprudence. The essay by Hittinger explores natural law grounds
for judicial restraint. Ely argues that theories of natural law
provide no such restraint.
Arkes, Hadley. Beyond the Constitution. Princeton: Princeton
University Press, 1990.
———. The Return of George
Sutherland: Restoring a Jurisprudence of Natural Rights.
Princeton: Princeton University Press, 1994.
Atiyah, P. S., and
R. S. Summers. Form and Substance in Anglo-American
Law. Oxford: Oxford University Press, Clarendon Press,
1987.
Barnett, Randy E.,
ed. The Rights Retained by the People: The History
and Meaning of the Ninth Amendment. Fairfax: George Mason
University Press, 1989.
Brownson, Orestes A.
“The Higher Law.” In Essays and Reviews,
Chiefly on Theology, Politics, and Socialism, 349–67. New
York: D. and J. Sadlier, 1880.
Corwin, Edward S. The “Higher Law” Background of American
Constitutional Law. Ithaca: Cornell University Press, 1955.
Cover, Robert M. Justice Accused: Antislavery and the Judicial
Process. New Haven: Yale University Press, 1975.
Dworkin, Ronald.
“‘Natural’ Law Revisited.”University of Florida Law Review 34 (1982):
165–88.
Ely, John Hart. Democracy and Distrust. Cambridge: Harvard
University Press, 1980.
Fuller, Lon. The Morality of Law. Rev. ed. New Haven: Yale
University Press, 1969.
Haines, Charles
Groves. The Revival of Natural Law Concepts.
Cambridge: Harvard University Press, 1930.
Hart, H. L. A.
“Positivism and the Separation of Law and Morality.”Harvard Law Review 71 (1958): 593–629.
———. The Concept of Law.
Oxford: Oxford University Press, 1961.
———. “Review of Lon L. Fuller, The Morality of Law.” In Essays in
Jurisprudence and Philosophy, 343–64. Oxford: Oxford
University Press, Clarendon Press, 1983.
Hittinger, Russell.
“Liberalism and the American Natural Law Tradition.”Wake Forest Law Review 25, no. 3 (1990):
429–99.
———. “Natural Law in the Positive Laws: A
Legislative or Adjudicative Issue?”Review of
Politics 55, no. 1 (1993): 5–34.
Nelson, William. The Fourteenth Amendment. Cambridge: Harvard
University Press, 1988.
Postema, Gerald. Bentham and the Common Law Tradition. Oxford: Oxford
University Press, 1986.
Richards, David A.
J. Toleration and the Constitution. Oxford:
Oxford University Press, 1986.
Stanlis, Peter J. Edmund Burke and the Natural Law. Shreveport:
Huntington House, 1986.
Stevens, Richard J.
Frankfurter and Due Process. Lanham, Md.:
University Press of America, 1987.
Tiedeman,
Christopher G. The Unwritten Constitution of the
United States. New York: G. P. Putnam’s Sons, 1890.
Wright, Benjamin
Fletcher. American Interpretations of Natural
Law. Cambridge: Harvard University Press, 1931.
Contemporary Debates
In addition to the issue of judicial review, contemporary
debates about natural law often crystalize around two other
problems: first, the ongoing debate over legal positivism; second,
the role of subjective rights in natural law theory. The book by
John Finnis is a good place to begin in understanding both of these
problems. A professor at Oxford, Finnis has developed an
influential theory of natural law that has affinities to both the
scholastic and analytical traditions. Finnis also systematically
develops a theory of natural rights. The works by George,
MacCormick, and Raz indicate that debates between natural lawyers
and positivists are more refined today than they were a generation
ago. On the problem of natural rights, see the two works by Fortin,
who questions the compatibility between the older natural law
tradition and the modern notion of personally possessed (i.e.,
subjective) rights. McInerny and Veatch also explore philosophical
problems of welding together the two traditions. Maritain’s
book is a famous example of the effort by some neo-Thomists to
affirm the modern notion of inalienable rights. Hervada, on the
other hand, develops an older conception of natural rights, not
unlike Rommen. Writings by Tierney, Tuck (above), and Villey take
different positions on the historical question of whether modern
natural rights are rooted in the medieval scholastic tradition.
Books by Gewirth, and Rasmussen and Den Uyl are recent efforts to
make sense of natural or human rights completely apart from the
scholastic tradition. Finally, Shapiro provides an intellectual
history of the evolution of modern rights theories.
Finnis, John. Natural Law and Natural Rights. Oxford: Oxford
University Press, Clarendon Press, 1980.
Fortin, Ernest.
“The New Rights Theory and the Natural Law.”Review of Politics 44 (October 1982): 590–612.
———. “‘Sacred and Inviolable’:
Rerum Novarum and Natural Rights.”Theological Studies 53 (1992): 202–33.
George, Robert P.,
ed. Natural Law Theory: Contemporary Essays.
Oxford: Oxford University Press, Clarendon Press, 1992.
———. The Autonomy of Law: Essays on
Legal Positivism. Oxford: Oxford University Press, Clarendon
Press, 1996.
Gewirth, Alan. Reason and Morality. Chicago: University of Chicago
Press, 1978.
Hervada, Javier. Natural Right and Natural Law: A Critical
Introduction. Trans. Alban d’Entremont. Pamplona, Spain:
University of Navarra, 1987.
MacCormick, Neil.
“Natural Law and the Separation of Law and Morals.” In
Natural Law Theory: Contemporary Essays, ed.
Robert P. George, 105–33. Oxford: Oxford University Press,
Clarendon Press, 1992.
Maritain, Jacques.
Man and the State. Chicago: University of Chicago
Press, 1951.
McInerny, Ralph.
“Natural Law and Human Rights.”American
Journal of Jurisprudence 36 (1991): 1–14.
Rasmussen, Douglas
B., and Douglas J. Den Uyl. Liberty and Nature: An
Aristotelian Defense of Liberal Order. La Salle, Ill.: Open
Court, 1991.
Raz, Joseph. The Morality of Freedom. Oxford: Oxford University
Press, Clarendon Press, 1986.
Shapiro, Ian. The Evolution of Rights in Liberal Theory.
Cambridge: Cambridge University Press, 1986.
Tierney, Brian.
“Villey, Ockham and the Origin of Individual Rights.”
In The Weightier Matters of the Law, ed. John
Witte and F. S. Alexander. Atlanta: Scholars Press, 1988.
———. “Aristotle and the American
Indians—Again.”Christianesimo Nella
Storia 12 (Spring 1991): 295–322.
Veatch, Henry B. Human Rights: Fact or Fancy? Baton Rouge: Louisiana
State University Press, 1985.
Villey, Michel. Le droit et les droits de l’homme. Paris: Presses universitaires
de France, 1983.
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