Jeffrey A. Pojanowski (Notre Dame Law School) has posted Natural Law and Reading Positive Law: Moments of Moral Judgment in Legal Interpretation (American Journal of Jurisprudence, Volume 71 (forthcoming 2026)) on SSRN. Here is the abstract:
What role does moral reasoning play in the interpretation of positive law? Natural lawyers all agree that, at some level, moral judgments are central for the sound interpretation of human law. But this consensus obscures disagreement about difficult questions. Trying to give an answer about the place of natural law reasoning in legal interpretation, in fact raises a cluster of several questions or decision points. This paper, as part of a symposium on “Analytical Thomism,” identifies and discusses these moments of morality in legal interpretation, including: the choice of interpretive methodology, adherence to meta-norms about interpretation, presumptions about the content of positive law, resolving ambiguities or conflicts such law’s content, and the decision whether to apply the positive law at all. It also offers a sketch of an argument for a natural law theory of presumptive formal interpretation. Whether or not that particular approach is persuasive, understanding the varying answers to these distinct questions will help us understand the range of, and disagreements among, various non-positivist approaches to legal interpretation.
Highly recommended.