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126 University of Pennsylvania Law Review 329 (1977)


The proposition that late medieval English lawgivers believed themselves to be exercising a declarative function has been so frequently put forward and so widely accepted that it is in danger of being canonized by sheer dint of repetition; and thus one who would deny the essential validity of that notion bears the virtually insuperable burden of proof commonly accorded an accused heretic. Nevertheless, it will be argued here that natural law notions are attributed to the medieval English legislator with only the slightest support from the sources, and after only the most rudimentary and uncritical analyses of the implications of such an idea. One possible source of confusion lies in the use of the term "natural law" in at least two distinct fashions. For some, the notion is embodied in the principle that all legislation is declaratory of pre-existing rights; for others, the central idea of natural law is the proposition that some matters are beyond the reach of legislative authority. It will not be possible here to deal with all the various statements of the argument or its refinements, but I hope to sketch in outline my reasons for believing the declaratory theory to be generally misconceived and offer some admittedly tentative conclusions.