Chapter

Law in a Catholic Framework

Patrick McKinley Brennan

in Teaching the Tradition

Published in print February 2012 | ISBN: 9780199795307
Published online May 2012 | e-ISBN: 9780199932894 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199795307.003.0022
Law in a Catholic Framework

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Positivism, the modern approach to law, respects only the will of the government or the will of the sovereign. The Catholic tradition of law recognizes that groups and individuals are always under a higher law, the natural law. Only by drawing on natural law can any subsequent law properly be defined, framed, and judged. The U.S. Constitution requires due process of law. “Substantive due process” requires proper procedures and imposes certain substantive requirements. Does it make sense to pit “rights” against “law”? The Thomistic approach avoids this clash by saying that some laws are not laws at all. In particular, compulsory sterilization of the mentally disabled fails as a law. Nonetheless in Buck v. Bell (1927) the U.S. Supreme Court upheld a Virginia law allowing compulsory sterilization. Natural law theorists look to procedure and substance because natural law is a sharing in the eternal law of God and is the imprint on humans of the Divine light. Thomas Aquinas says that legislation is the highest form of human participation in the divine law. If asked to pass judgment on a morally deficient law, the judge should not judge, because according to the natural law, that “law” is not truly a law.

Keywords: law; natural law; substantive; due process; Thomistic; rights; sterilization; positivism; divine law

Chapter.  9215 words. 

Subjects: Religious Studies

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