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Dante’s Lawyers from Heaven: Justinian

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2021 marked the 700th anniversary of Dante’s death and saw the publication on March 25 of Pope Francis’ Candor Lucis Aeterna, a lucid analysis of Dante and his work. This is the fourth and final of a series of Ius et Iustitium pieces by Aníbal Sabater discussing lawyers in the Divine Comedy. The first three pieces, “Dante’s Lawyers from Hell,” “Dante’s Lawyers from Purgatory: Cato,” and “Dante’s Lawyers from Purgatory: Trajan,” can be found here. The goal of the pieces is to show how the classical legal theory pervades the Commedia.

As Beatrice and Dante ascend through Paradiso, they reach the sphere of Mercury, which shines splendidly because of its proximity to the sun. The view is impressive and Dante, mischievously ignoring the immutability of Heaven, claims that the planet becomes even more radiant as Beatrice sets her foot on it. The souls in Mercury are pure light, and one of them offers Dante a seat. Paradiso’s Canto 5 finishes with Dante accepting and asking the spirit who he is. In Canto 6, the spirit responds:

Cesare fui e son Iustinïano, che, per voler del primo amor ch’i’ sento,d’entro le leggi trassi il troppo e ’l vano.[1] Cesar I was, and I am Justinian, Who, by will of the first love that I feel,Excised from the laws all that was excessive and vain.

The speaker is the Eastern Roman Emperor Justinian (482-565) and the excised laws he mentions are those in the Corpus Iuris Civilis—his monumental compilation that remains the basis for the study of Roman law today. Continue reading “Dante’s Lawyers from Heaven: Justinian” →

Section Three of the Fourteenth Amendment and the Imprudence of Originalism

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The author is a recent federal judicial law clerk.

I.

Events of the last month provide a case study in the question of how originalists relate legal theory to legal practice. On August 10, originalist law professor and Federalist Society co-founder Steven Calabresi uploaded a post to the group law blog The Volokh Conspiracy arguing that Section Three of the Fourteenth Amendment automatically disqualifies Donald Trump from running for president in 2024.[1] This post, it turned out, was a pre-endorsement of a forthcoming law review article, 126 single-spaced pages in length, uploaded to SSRN on August 14 by prominent originalists Will Baude and Michael Stokes Paulsen.[2] The relevant constitutional text runs as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.[3]

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Joel Alicea’s Failed Counter-Offensive: Further Notes on Political Authority and Natural Law

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The author is a recent federal judicial law clerk. What follows is a response to Alicea’s reply to an article published on I&I and available here.

Joel Alicea, the foremost defender of the position that positivism and natural law theory are actually compatible–contradicting Aquinas and all the baroque scholastics he cites–is at it again.[1] His response to my original critique misconstrues a number of my arguments and fails to engage with any of my substantive criticisms. Instead, he is content to repeat the slogan that the people’s adoption of the United States Constitution means that the Constitution is interpreted without reference to the natural law. As I noted before this position is inconsistent with those thinkers that formulated the transmission theory of authority, because for such thinkers positive law is always governed by the natural law. For example, Yves Simon distinguishes two ways of rooting authority in the people: 1) the coach-driver theory which holds that the government is bound to implement the will of the people; and 2) the transmission theory of authority in which the government upon reception of authority from the people is not bound by the will of the people but the demands of the common good.[2] Effectively while talking the language of the transmission theory of authority via sleight of hand Alicea is adopting the coach driver theory of authority. He holds that the judiciary and the United States Government must not interpret and implement the Constitution in accord with the demands of natural law but in accord with the original will of the people in 1789. Thus, on Alicea’s account the common good, right reason, and natural law do not norm this determination and direct its interpretation. Instead, judges and the government are bound to implement the will of the people in 1789. This theory, unlike the classical transmission theory, is condemned by the Catholic Church because it separates positive law from natural and divine law. Further, this account of popular sovereignty, in which the government is constrained by the will of the people, is precisely what was condemned by Leo XIII and Pius X in their magisterial teaching.[3] Alicea’s core thesis having been disposed of, I will clear up some misconceptions in his article and respond to an objection. Continue reading “Joel Alicea’s Failed Counter-Offensive: Further Notes on Political Authority and Natural Law” →

Alicea’s Noble Lie

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The author is a recent federal judicial law clerk.

“ATHENIAN: Tell me, Strangers, is a God or some man supposed to be the author of your laws?”

“ATHENIAN: And do you, Cleinias, believe, as Homer tells, that every ninth year Minos went to converse with his Olympian sire, and was inspired by him to make laws for your cities?”
 – Plato, Laws 624a-b

Joel Alicea has striven mightily to reconcile a form of positivist originalism with natural law theory.  He claims to have given originalism a “moral authority” derived from the natural law.  Yet his arguments reduce to either a noble lie in the vein of Plato’s Republic or an act of faith in liberalism’s founding mythology.  Alicea’s recent review of Hadley Arkes’s Mere Natural Law: Originalism and the Anchoring Truths of the Constitution demonstrates this point. There, Alicea makes a startling argument for the moral authority of positivist originalism.  He writes:

Who has care of the community in the United States? That is, who is the legitimate lawmaker in the United States? The answer — as deduced from the natural-law tradition’s teaching on the nature of political authority — is the people, the same people who, the Preamble declares, “ordain[ed] and establish[ed]” our Constitution. Once we understand this, the judicial obligation to obey the Constitution as the people understood it becomes clear — as does the moral force undergirding Dobbs.[1]

Claiming to follow the Thomistic definition of law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated,”[2] he posits that someone must have the “care” of, that is, authority for the direction of, the political community that is the United States.  So far so good.  But then he goes on to make the remarkable assertion that the “the people,” considered apart from any authority, have this authority under the natural law.  Because the people have this authority, their choices in establishing the Constitution are morally binding until revolution or regime change via the mechanisms the people set forth in the Constitution.  The same is true, he claims, of the people’s understanding of the Constitution.  This argument is fundamentally flawed.  

Continue reading “Alicea’s Noble Lie” →

The Supreme Court’s First Crack at Section 230(c)(1)

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. Adam Candeub is Professor of Law and Director of the Intellectual Property, Information & Communications Law Program at the Michigan State University College of Law.

The Supreme Court last week heard oral arguments Gonzalez v. Google—its first opportunity to consider Section 230(c)(1) of the Communications Decency Act, the statute that sets the basic liability rules for the internet. The Gonzalez plaintiffs represent victims of the Paris, Istanbul, and San Bernardino terrorist attacks. They claim that YouTube’s targeted recommendations radicalized the terrorists to commit their heinous crimes, and YouTube is liable for damages under the Anti-Terrorism Act (ATA), 18 U.S.C. § 2333. Google, YouTube’s parent company, argues Section 230(c)(1) shields it from that claim.[1]

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Shareholder Capitalism, Corporate Governance, and the Common Good: A UK Perspective

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. J.S. Liptrap is Assistant Professor, Law Department, University of Sussex; Research Associate, Centre for Business Research, Cambridge Judge Business School. The author adds: “Subject to the usual caveats, thanks to Conor Casey, Michael Foran and Adrian Vermeule for helpful discussions on an earlier draft of this essay.”

Introduction 

This essay, based upon an ongoing project, is the first in a two-part contribution that (i) critiques shareholder capitalism on classical legal grounds and then (ii) provides a preliminary sketch of what the UK corporate governance system would look like if it were more closely anchored in the classical legal tradition. Before delving into the first part of the project, though, a brief remark on academic humility is in order. The classical legal tradition has an ancient pedigree, and it has enjoyed something of a resurgence in recent memory and contemporary debates thanks to the labors of many commentators, some of whom were kind enough to discuss this project’s overall aims and direction of travel. Their contributions are mainly confined to constitutional and public law spheres, and my task, such as it is, is to adapt that body of work to the corporate governance field.[1] Hence, it is only right to acknowledge that intellectual debt at the outset. With that said, the impetus for the project is that there are perhaps myriad orthodox ways to critique shareholder capitalism, but they do not pierce the heart of the problem. When we shine a spotlight on the root problem with shareholder capitalism, referencing the classical legal traditional positions us to understand why reforms are actually necessary.  

Orthodox Critiques of Shareholder Capitalism

Shareholder capitalism, loosely, is a form of capitalism in which shareholders’ interests dominate all others. Corporations operate for the primary purpose of maximizing profits, and returning the highest possible yields to shareholders. In terms of orthodox critiques, we might begin with the assumption that a corporate legal regime attuned to shareholders will produce a number of material benefits for the public at large in their overlapping capacities as investors themselves or employees.  But this, unfortunately, does not appear to be the reality. For one thing, the UK is not a country of widespread capital ownership. Likewise, it is no secret that UK real wages have stagnated over the last decade or so (and, indeed, further back), and this is exacerbated by the ongoing cost of living crisis. Meanwhile, in 2021 dividend distributions climbed back to pre-COVID levels for FTSE 100 firms (£73.7 billion). Since these material benefits do not seem to reach the average citizen, one might reasonably wonder how shareholder capitalism is exactly improving social welfare in Britain today. 

We could also critique another of shareholder capitalism’s assumptions about executive compensation from an orthodox perspective. The logic goes that, because shareholder wealth maximization is the most socio-economically desirable end to corporate governance (which is highly debatable), corporate managers ought to be incentivized in line with the wishes of the general meeting, and the capital markets more broadly. By wedding executive pay packets to share price performance, corporate managers have a compelling incentive to work hard and do a good job. If they do not, they can be removed by a simple majority vote, or they otherwise risk the prospect of a takeover, which may well also result in their removal from office further downstream. Whilst this arrangement incentivizes corporate managers, it also discourages them from shirking their duties, or engaging in self-enrichment, at the corporation’s expense. However, recurring episodes of corporate misconduct indicate that tying executive compensation to share price performance creates a pathway to achieving great personal wealth. For this reason, it should not be surprising when corporate managers are implicated in severe fraud, financial malpractice and brazen accounting manipulation. The recent Patisserie Valerie and Carillion scandals are garden-variety illustrations highlighting that this attendant dimension of shareholder capital does not necessarily function in the envisioned manner, and it has an exacting social cost. 

The Root Problem

These orthodox critiques of shareholder capitalism are adequate and reasonable, insofar as they are consistent with the internal lexicon and modes of thinking that corporate governance commentators typically rely upon when they engage with each other. However, the internal lexicon and modes of thinking have intrinsic limitations. These limitations are borne out of the law and economics movement, a movement that has maintained an assertive chokehold on corporate governance scholarship (and policymaking) for many years. A result of the law and economics movement’s influence on the discipline is that, whilst other academic fields have advanced, the study of corporate governance remains, to a greater or lesser extent, static and continues to be driven by antiquated conventions and philosophies. Thus, unless one is prepared to abandon the standard law and economics toolbox, asking certain questions about shareholder capitalism is essentially out-of-bounds. And the trouble, in my view, is that the root problem with shareholder capitalism lies in a deeper conviction that the law and economics movement holds as sacrosanct, which a researcher observing the discipline’s internal lexicon and modes of thinking simply cannot reach in the customary way. 

The root problem is that, although shareholder capitalism is supported by discrete assumptions like those above, its foundations are in a more general – and inaccurate – assessment of human nature. This assessment hinges on caricaturing humans as “rational egoists” with an insatiable appetite to consume and pursue material gains. When this natural state of being is leveraged within competitive market settings and scaled to a population level, it has a certain dynamism and ability to deliver larger and larger accumulations of wealth. This is in the public interest, not least because competition ensures the efficient allocation of societal and natural resources. As Paddy Ireland notes, in the corporate governance context, these “ideas have found expression in the idea that ‘maximising shareholder value’ benefits not only shareholders but society as a whole”. I have already offered a few examples of why we should be skeptical of the shareholder wealth maximization proposition, but these are merely offshoots of a more profound issue. The root problem underpinning the larger system is that it is assumed that this conception of human nature is fixed and has an unalterable, pre- societal and regulatory existence. Here, the best function of law is to harness and track that nature. To borrow from Hans Kelsen, this is the “grundnorm” of shareholder capitalism from which all else flows. 

However, this assessment of human nature was refuted some time ago. In particular, what studies on human evolution reveal is a rather different, more complicated story about us – one that has yet to be absorbed into the corporate governance canon. Utility-seeking egoism is part of the equation, it is true, but evolutionary economics commentators, like Geoffrey Hodgson, demonstrate that this facet of human behavior is only as dominant as our communal codes and principles of morality allow it to be. To be sure, those studying the evolution of human cooperation, such as Samuel Bowles and Herbert Gintis, show that law and legal institutions can serve as cues for cultivating equally important facets of human behavior, like goodwill, mutual trust, reciprocity and solidarity. This is not to say that self-interest is somehow absent, but rather that “other-regarding” motivations and preferences can become dominant in the right institutional environments. In other words, law matters. It is a principal driver dictating how humans behave within society, including within substructures like capital markets and corporations.

What can be distilled from this is that law and legal institutions can either be used to promote self-interest and what the German economist Goetz Briefs described as “marginal ethics”, or something else. Ultimately, how capitalism, and by extension the corporation, functions is a political and legal choice, not an inescapable conclusion arising from our nature as a species. Granted, much of the root problem is obscured by the neo-liberal “political project” that David Harvey details, of which the law and economics movement is a part. However, as alluded to by Susan Strange, the current corporate capitalism in operation in the UK, and more globally, exists “under the authority of and by permission of the state” and is “conducted on whatever terms the state may choose to dictate, or allow”. E. P. Thompson was, therefore, right when he opined that human beings do not behave like rational egoists, striving to improve their positions at others’ expense, because the human condition is immutable and cannot be re-directed to more appropriate ends. Human beings behave this way because of socio-legal institutional signals.

The Classical Legal Tradition 

This is where the classical legal tradition comes into play. Put plainly, should the state allow this formulation of corporate capitalism – and all the societal and environmental hazards that go hand-in-hand with it – to subsist? More to the point, should the function of law and legal institutions be reduced to stimulating the expression of humanity’s most destructive traits instead of its best ones? The classical legal tradition takes a view on these questions, and in that sense it positions us to understand why reforms are actually necessary. Reforms are not needed because shareholder capitalism has the wrong idea about how to tabulate and achieve aggregate utility, as counter narratives like stakeholder capitalism would have us believe. It is because the proper function of law and legal institutions is to promote the common good, and the legitimate exercise of public authority is contingent on upholding and furthering it. The Thomistic tradition further specifies that the common good is not achievable at all unless policymakers take care in orientating citizens to a community of civic friendship with each other. 

Although developments in our understanding of human evolution in group settings confirm that we are capable of cultivating things like mutual trust and solidarity (even in market settings), this does not seem possible where the state has institutionalized a set of prescriptions for provoking what Oliver Williamson referred to as “self-interest seeking with guile”. That is to say, policymakers have made a collective choice to opt for lax corporate governance rules and ethical norms that condition and encourage people to bend or avoid societal and environmental obligations if it generates market or material advantage. From a classical perspective, such arrangements cannot be regarded as legally genuine and valid. They are frauds or imposters, and more like acts of violence than “law” properly construed. They indicate that political authorities have lost touch with what the common good means; what the purpose of law is – this is why reforms are necessary.

In the second instalment of this two-part contribution, I offer a preliminary sketch of what corporate capitalism would look like in the UK if it was more closely anchored in the classical legal tradition, with particular attention paid to the tradition’s controlling principle that policymakers have a duty and corresponding authority to promote the flourishing of all members of the community. 

J.S. Liptrap

[1] Note that this is not the first occasion that Ius & Iustitium has featured an essay on the corporation and the common good.

Aquinas and Human Rights

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Aníbal Sabater is a lawyer in New York City specializing in international arbitration.

Whether subjective rights in general and human rights in particular exist in the classical legal tradition is a vexed question that most contemporary Thomists answer in the negative.   In 2019, however, Fr. Dominic Legge OP, Director of the Thomistic Institute, published “Do Thomists Have Rights?,”[1] an article of some popularity in integralist circles that presents Aquinas as a human rights forerunner.[2]  These lines are offered in a spirit of constructive criticism of that article.

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Classical Political Forms, the Mixed Regime, and the State of Emergency—Roman, Byzantine, Muscovite?

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The following essay was submitted by Julian G. Waller, Professorial Lecturer in Political Science at George Washington University, a Visiting Scholar at the Institute for European, Russian and Eurasian Studies, and a Non-Resident Fellow at Elliott School of International Affairs’ Illiberalism Studies Program. All views are his own and do not represent his employers or affiliated organizations. 

Interest in the classical legal tradition and the classical philosophies on political regime and political order from which it emerged have grown significantly, as this very publication outlet can attest. This revival is particularly interesting because until recently the categories and frames of reference central to the classical tradition have been largely outside the mainstream of scholarly work across an array of academic genres, from legal theory to political science and beyond. 

Given this, I wanted to invite the readers of I&I’s attention to a recent attempt at melding older understandings of political regime with modern scholarship – thus far still a rare occasion. This summary is an encouragement for those interested in classical political concepts and their relevance to the classical legal tradition to engage with both the promise and pitfalls of this approach to the scholarly study of political order and political regime. Most scholarship today does not consciously rely on classical frameworks for these topics. It is therefore important to understand the difficulty of translating old and new ways of typifying regime, and to take interest whenever such a mixing, or an attempt at application, is undertaken. 

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Environmental Law and the Classical Legal Tradition

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Ius & Iustitium welcomes submissions from academics, practicing lawyers, and students interested in the classical legal tradition. The following essay was submitted by Brian Quigley, Research and Reference Librarian at NSU Shepard Broad College of Law at Nova Southeastern University in Davie, Florida. This post is adapted from a longer article available here.

The classical legal tradition is ever-new. Its history is one of repeated displacement and revival. Stuart Banner identifies several persuasive reasons for the decline in the use of natural law reasoning that began in the late nineteenth century. These include a greater reliance on written constitutions, that law and religion were increasingly viewed as separate domains, a dramatic increase in the volume of legal publishing, and a feeling that the natural law lacked useful content.[1] In the face of these headwinds it is easy to imagine the classical legal tradition becoming a matter solely of historical, rather than practical, interest. Instead, the tradition has been subject to repeated revivals, first in the 1910s and early 1920s, and again—in more sustained fashion—in the 30s, 40s, and 50s as a response to the rise of totalitarianism and the horrors of the Second World War. While our legal culture has changed dramatically in the intervening decades, interest in the classical legal tradition has never fully receded and may be in the early stages of widespread resurgence.

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“Closure Rules” Are Ius for Originalists

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Conor Casey is a Lecturer in Law, University of Liverpool School of Law & Social Justice. Adrian Vermeule is the Ralph Tyler Jr. Professor of Constitutional Law, Harvard Law School. 

A standard set of claims, common to both classical lawyers and Dworkinians, is that the interpretation of positive legal rules inevitably rests on express or implied arguments from political morality (in particular, for the classical lawyer, the subset of political morality bearing on legal justice), and that positive rules are inevitably under-determinate, due to the inherent limits of language and of lawmakers’ foresight. Originalists have evolved an attempt at a solution: “closure rules.”

At the question and answer session following a recent panel discussion, organized by the American Enterprise Institute, on “Natural Law and Original Meaning,” an audience member asked the panelists (Sherif Girgis, Kevin Walsh, and Lee Strang) if judges should be able to apply “maxims of natural law as canons of construction” to find the meaning of posited constitutional text, where texts remain under-determinate after attempts to ascertain its original meaning from socio-historical sources. Strang’s headline response was that there was no conventional originalist position to address the question (a notable response in itself). But Strang proceeded to note that originalists have worked hard to identify additional conceptual resources to create so-called “closure rules” in cases where constitutional text remains under-determinate, after the search for things like original semantic and conventional public meaning has been exhausted. Strang cited the possibility of seeking out originally understood legal rules of interpretation to try and generate thicker, more robust, original meanings and ameliorate the under-determinacy problem. Where this kind of enterprise still yielded under-determinacy, Strang suggested that originalists had argued powerfully that constitutional actors should proceed in a Thayerian fashion: the legislative branch should be permitted to “construct” meaning and judges should defer to their construction unless they have acted in clear error of other constitutional commitments.

As we have previously noted, however, such “closure rules” just replicate the problem they are intended to address. Closure rules are themselves subject to the same problems as the first-order rules for which they attempt to provide a tourniquet of determinacy. The very fact that Professor Strang mentioned multiple possibilities for “closure rules” underscores the point: the choice between possible closure rules itself depends upon normative arguments. It is not just written in the nature of things, inherent in the nature of language or communication or inherent in the nature of interpretation, that the interpreter should simply “put the statute down” (as Frank Easterbrook once suggested), should rely on party presentation of socio-historical facts rather than attempt their own search (as some originalists suggest), defer to legislators or agencies (the approach Strang finds powerful), or adopt some other approach. To adopt one or other approach itself requires a choice, necessarily based on arguments about which approach serves the public interest or common good — whether or not the interpreter makes those arguments explicit.

Likewise with the idea that originalists can just use the closure rules “used by the founding generation itself,” such as the above-mentioned use of conventional legal rules of interpretation present at the different times constitutional provisions were ratified. Apart from other grievous problems (notably, that the founding generation thought about law in an entirely different way, within a classical framework and based upon a classical legal ontology), such rules themselves come in multiple competing versions, are themselves inevitably partially indeterminate and require further, controversial specification, and themselves require interpretation, resting on normative arguments. Just as first-order rules can be read at multiple levels of generality, cashed out in different ways, and otherwise extrapolated in different directions, so too with the closure rules. Rules of historical evidence, for example, “rest on express or implied normative assumptions and arguments about the costs of decisionmaking and the costs of error, about the collateral and systemic effects of admitting or not admitting certain categories of evidence, and a myriad other topics” (as one of us recently noted). As H. Jefferson Powell put it, “Rather than avoiding the responsibility of choice, history requires of the originalist a whole new range of contestable…decisions.”

As another example, take Strang’s preferred example of “deference.” As administrative lawyers arguing over the best specification of Chevron deference can attest, merely saying “defer to reasonable interpretations of ambiguous text” is only the beginning of a very long story, involving threshold “step zero“ questions (when exactly does deference apply? Are there categories of decisions to which it doesn’t apply at all?), “step one” questions (how ambiguous is ambiguous?), and “step two” questions (how reasonable is reasonable?). At every such step, normative arguments have been and must be called into play. Consider the idea in the leading decision on the step zero problem, United States v. Mead, that a certain complex approach to step zero best serves “fairness and deliberation.” Consider also an argument for the “major questions” clear statement rule, recently advanced by Justice Neil Gorsuch, that it helps to prevent “government by the people” from being supplanted by “government by bureaucracy.” Gorsuch’s argument here can only be described as Dworkinian in method, although needless to say not Dworkinian in substance.

Sometimes, “closure rules” are said to lie within the “construction zone,” where “construction” is taken to be a different activity than “interpretation.” As we have also said before, this is in essence an arbitrary semantic categorization, one that presupposes a conception of “interpretation” that the classical lawyer contests. Actual interpreters do not approach or experience their task as though it involves a switch between an “interpretation” phase and a “construction” phase where “the law runs out.” It is all one process, a process that occurs within law and within legal interpretation, involving — from the classical perspective — the harmonization of two types of law: the harmonization of positive texts (lex) with background principles of legal justice (ius), not as a way of overriding lex, but as a way of understanding and interpreting lex in light of the larger commitments of the legal order.

As John Finnis puts it, basic principles of natural law are not extra-legal considerations or policy arguments brought to bear by lawyers and judge where the law runs out, but themselves function as a “direct source of law (or justification for judicial decision) and, in a certain sense, as already law.” Basic precepts of the natural law, says Finnis, are best regarded as “judicially applicable moral rules and principles” and “ipso iure (i.e., precisely as morally and judicially applicable) rules of law” belonging to the “ius gentium portion of our law.”

The best account of “closure rules,” then, is that they are just another set of arguments about the content of ius, as opposed to lex. Closure rules are just ius for originalists. Here as elsewhere, whatever their abstract theories, interpreters inevitably practice the classical legal approach, even without knowing it.

In the end, Strang’s response nicely highlights a serious fault line between the interpretive approach of the classical legal tradition, on the one hand, and the hybrid approach of so-called natural law originalism on the other. In the resolution of hard cases, both types of jurists will inevitably appeal to considerations of ius – whether they call it that or not. The former approach builds into the structure of the theory regard for the basic precepts of natural law and legal justice as the interpretive lodestar. But the latter appears (from what we have observed) reluctant to invoke them or, at most, will only have recourse to them when they are incorporated by posited law sources, all out of concern for undermining law’s stability, or co-ordination function, or other institutional goods — goods that, in our view, have already been left by the wayside in the class of cases that require recourse to “closure rules.” While both theories may share some fundamentals, this is a wide divergence indeed.

Conor Casey & Adrian Vermeule