Jeremy Christiansen (Regent University School of Law) has posted Natural Law, Unjust Laws, and Judicial Recusal: A Response to the “Natural Law” Originalists (Notre Dame Journal of Law, Ethics & Public Policy, Vol. 41) on SSRN. Here is the abstract:
America is experiencing a revival of the classical legal tradition. Although this “natural law moment” has made considerable ground within the conservative movement as of late, it faces resistance from established conservative ideological hegemony in the form of certain predominant strands of textualism and originalism. One point of contention between these camps is the case of the conflict between positive law and natural law: what is a judge to do when faced with a statute that violates natural law? Some scholars that we might call “natural law originalists”—those with an existing commitment to textualism and originalism who seek to invoke classical natural law to justify these theories—contend that when there is a true conflict between natural and positive law, natural law requires the judge to recuse from the case or resign from office, because declaring that an unjust statute is void or ignoring it is impermissible itself as a matter of natural law, amounting to judicial usurpation. This Article provides the first critique of the natural law originalist position from the classical perspective, arguing that the “recusal” theory of natural law originalists represents a substantial deviation from the classical view, is a convenient means of justifying continued adherence to originalism under the veil of natural law thinking, and turns out to be terribly unworkable.
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