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To: Dumb_Ox; patent; BlackElk
As I recall, Bork got in trouble for *denying* natural rights and natural law reasoning.

Looks like I missed the call on Bork.

But if natural law reasoning belongs to the Legislature, should not the courts adopt similar reasoning in determining Constitutionality of legislation?

80 posted on 03/09/2004 2:02:04 PM PST by ninenot (Minister of Membership, TomasTorquemadaGentlemen'sClub)
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To: ninenot
But if natural law reasoning belongs to the Legislature, should not the courts adopt similar reasoning in determining Constitutionality of legislation?

Good question. Here's how one of the theorists I mentioned would reply:

"[...] preoccupation with judicial appeals to natural law can easily fall into the trap that Aquinas himself discussed. Recall that in the passage cited earlier Aquinas pointed out that insofar as a judge proceeds case by case the laws are apt to be disconnected. The business of a judge is litigation, and, on the whole, litigation is not the best context for taking stock of what the natural law requries: (1) litigation gives the judge little time for reflection; (2) it moves along according to adversarial procedures, which are not the best way to develop a systematic position on the moral quality of laws; and (3) the interests of the various parties are usually narrowed so drastically that it is difficult to find generalizable principles for the common good. -Russell Hittinger, "Natural Law in the Positive Laws," The First Grace

118 posted on 03/11/2004 5:57:15 AM PST by Dumb_Ox
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