Fordham Law Review 69:6 (2001). Reprinted in T. Campbell (ed.), International Library of Essays in Law and Legal Theory, 2nd Series (Dartmouth Publishing Co. and Ashgate Publishing Ltd., 2003).
I am grateful to Joseph Koterski and James Fleming for their comments on my paper. Father Koterski and I agree more than we disagree. Things are the other way with Professor Fleming, so I will devote this response to his comments (though I will not address every point on which we disagree).
The terms “natural law” and “legal positivism” have no stable meaning in contemporary legal, political, and philosophical discourse. It is therefore incumbent upon scholars who participate in discussions in which these terms are employed to attend carefully to the different meanings assigned to them by different writers or by a given writer in different contexts. The price of carelessness in this regard is error and confusion.
Unfortunately, James Fleming’s comment on my paper demonstrates my point. Fleming imagines that there is a striking “anomaly” in my “embracing” Hugo Black’s “harangue” against natural law. “I can certainly understand,” Fleming avers, “why a positivist like Robert Bork would revel in Black’s trashing of natural law. I never thought, however, I would see the day when an able defender of natural law [that would be me] would embrace Black’s dissent [in Griswold v. Connecticut].” “Notwithstanding George,” he goes on, “one might expect most natural lawyers to defend the dignity and honor of natural law against Black’s critique [of it].”
Anyone who pauses, however, to consider what Hugo Black was rejecting when he condemned “the natural law due process philosophy” of judging (or what Robert Bork is affirming when he accepts the label “legal positivist”) will see that Fleming is deeply mistaken. The anomaly he thinks he finds in my analysis is an illusion generated by his failure to observe that the “natural law due process philosophy” that Black rejects has no necessary connection to the “natural law” I affirm. Indeed, no proposition central to Black’s criticism of the opinion for the Court in Griswold contradicts any proposition I hold or have asserted in defending natural law.
Fordham University [pdf]