In this brief essay, the author describes what he sees to be the unavoidable connection between natural law--or, more accurately, natural rights--and the positive law that is the subject of constitutional adjudication. This connection would exist whether or not there is a conceptual distinction between natural and positive law of the sort that Professor Fred Schauer maintains in his article, Constitutional Positivism. Because of this connection, judges in a world in which legal positivism is "true" should act, on occasion, as though the natural rights approach is' correct. And if this is true then, the author maintains, the natural rights position, in some important sense, is correct. Finally, the author takes issue with Professor Schauer's intimation that the appropriate do main of moral reasoning is limited largely to constitutional adjudication and to the Supreme Court of the United States.
25 Conn. L. Rev. 853-868 (1993)
Scholarly Commons Citation
Barnett, Randy E., "The Intersection of Natural Rights and Positive Constitutional Law" (1993). Georgetown Law Faculty Publications and Other Works. Paper 1253.