“Judgments of Nature”: James Wilson's Natural-Law Jurisprudence

Abstract

AbstractCan and should judges refer to the natural law? I address these questions from the point of view of James Wilson, paying specific attention to a question the scholarship does not address: Why does Wilson believe judges can (and must), in certain instances, refer to natural law? I develop a new taxonomy of Wilson's conception of judgment that answers this question. Wilson's definition of judgment as including the moral sense and reason, and his division of reasoning into demonstrative, moral, and legal reasoning, indicate why he countenances judicial recourse to natural law in certain cases yet remains committed to popular sovereignty and judicial restraint. Wilson describes “judgments of nature” as intuitive judgments based on self-evident truths and articulates how judges might be called upon to make certain judgments based on a manifest repugnancy to the natural law. His judicial decisions confirm this commitment to natural law and judicial restraint.