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Higher Law


HIGHER LAW is that purported body of legal principles, partaking of the divine, that is eternally and universally valid in human society. As the Roman orator Cicero explained it, it is "right reason in agreement with nature … [it is] one eternal and unchangeable law … valid for all nations and all times, and [there is] …one master and ruler, that is, God, [who is] the author of this law, its promulgator, and its enforcing judge." Christian legal theorists, such as St. Augustine and St. Thomas Aquinas, gave similar descriptions of this all-encompassing system. Under the rubric of "natural law," the jurist Sir William Blackstone recognized it as a part of the English common law in his famous Commentaries (1765–1769), which profoundly influenced American common law, and its expositors such as Joseph Story and James Kent. The nature of the American legal system, and whether it admits of higher law, or whether it simply consists of the temporal pronouncements of the American people and their legislatures, has been a much-mooted question throughout American history. In the late eighteenth century, higher-law notions were used to explain the presence of natural rights in America, and higher-law principles were said, by the abolitionists, to justify resistance to the provisions of the U.S. Constitution that permitted slavery. Higher-law notions fell into disrepute following their use in the late nineteenth and early twentieth centuries, particularly through the doctrines of freedom of contract, to frustrate state and federal regulation of the economy. In the late twentieth century, pursuant to the doctrines of legal realism, which became ascendant in American legal education beginning in the 1960s, American constitutional and private law has generally been understood only to be the product of American legislators and judges. Still, when, in 1974, President Gerald Ford pardoned the disgraced former President Richard Nixon, he claimed that he did so on the basis of a "higher law" than the Constitution, and when the Supreme Court, under Chief Justice Earl Warren, rendered a series of decisions dramatically enhancing individual rights, the Court's critics and supporters recognized that the Court was turning to higher-law notions of fairness and justice to support its rulings. The higher-law notion of inalienable rights granted by a Creator was acknowledged in the Declaration of Independence, and in the late twentieth century, several scholars sought to demonstrate that the Constitution itself was created to secure those rights.


Corwin, Edward S. The "Higher Law" Background of American Constitutional Law. Ithaca, N.Y.: Cornell University, 1955.

Gerber, Scott Douglas. To Secure These Rights: The Declaration of Independence and Constitutional Interpretation. New York: New York University Press, 1995.

Sandoz, Ellis. A Government of Laws: Political Theory, Religion, and the American Founding. Baton Rouge: Louisiana State University, 1989.

Stephen B.Presser

See alsoCommon Law .

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