Thomas Lordan has posted Hadley Arkes and the Natural Law on SSRN. Hereis the abstract:
Among other subjects, Hadley Arkes has written extensively on the intimate relationship of morals and law. He shows, both philosophically and through an examination of individual cases, how law is, at its root, a moral enterprise, something which must come as a bit of a jolt even, or especially, to its practitioners. His writings on morals and law are, I argue, unified by three principal and interrelated arguments:
First, for moral realism rather than moral or cultural relativism;
Second, for natural law rather than legal positivism; and
Third, for the application of moral principles—that is, natural law—as the way to understand individual cases.
In this Paper, these arguments are considered in that order, even though they do not always appear that way in Arkes’s principal works, because each argument ultimately depends on the argument or arguments preceding it. To see this in reverse order, we cannot understand why or how Arkes thinks judges should apply natural law in the resolution of actual cases unless we understand how, on his account, natural law itself provides a hermeneutic for the study of law that legal positivism cannot provide; and we cannot understand Arkes’s account of natural law unless we understand the account of moral realism on which he grounds it. The Paper takes up these three arguments, or themes, each of which is exemplified at length in Arkes’s work.
I note at the beginning that in all three areas, Arkes upsets settled sensibilities. For he might be thought of as a “Kantian natural lawyer,” who yet professes no “theory” of natural law, and who wants to enjoin the Supreme Court from its modern course of legislating under the pretext of judging not by insisting, as most conservatives do, that the Court stick to the original meaning of the text when construing the Constitution or statutes, but by asking the Court to go beyond the texts to their deeper meanings in the natural law itself.