Lawmaking, Administration, and Traces of Civic Republicanism: Thought on Jean Porter’s Ministers of the Law

Journal of Catholic Social Thought: Symposium on Jean Porter's Ministers of the Law: Natural Law Theory of Legal Authority, Forthcoming

Villanova Law/Public Policy Research Paper No. 2010-22

12 Pages Posted: 31 Mar 2011

Abstract

This paper highlights some of the most salient and perhaps controversial implications of a natural law basis of human lawmaking. First, it requires the rejection of a libertarian presumption in favor of less government and lawmaking. Second, it grounds legal authority in political authority, which in turn is the body politic's responsibility and right to determine the contingent ways by which its members will do what the natural law allows or requires. Third, it entails that promulgated legislative intent, not text, is the locus of law. Textualism is ruled out because it is (in a technical sense) mindless: it mistakenly maintains that law can exist other than in minds. Fourth, such recognition requires ample opportunity and adequate mechanisms for law to be made by those who are in position to discern the concrete requirements of the good in particular circumstances. Administration is therefore central to law, not peripheral to or inconsistent with law. This paper was written as a response to Jean Porter's new book Ministers of the Law: A Natural Law Theory of Legal Authority.

Keywords: Natural law, legislation, textualism, interpretation, delegation, administration, authority, civic republicanism, Brand-X

Suggested Citation

Brennan, Patrick McKinley, Lawmaking, Administration, and Traces of Civic Republicanism: Thought on Jean Porter’s Ministers of the Law. Journal of Catholic Social Thought: Symposium on Jean Porter's Ministers of the Law: Natural Law Theory of Legal Authority, Forthcoming, Villanova Law/Public Policy Research Paper No. 2010-22, Available at SSRN: https://ssrn.com/abstract=1711425

Patrick McKinley Brennan (Contact Author)

Villanova University School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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