A few times, including here at the New Digest, I’ve touched on the recent argument by “natural law originalists” that natural law requires judges to recuse in the face of an unjust law. Needless to say, that position is wrong.
I am pleased to announce my forthcoming article with the Notre Dame Journal of Law, Ethics, and Public Policy, entitled Natural Law, Unjust Laws, and Judicial Recusal: A Response to the “Natural Law” Originalists. This is, so far as I am aware, the first attempt at a thorough critique of the “recusal” theory advanced expressly by scholars like Joel Alicea and, at least implicitly, Lee Strang.
I offer a critique on three fronts: (1) the natural law originalist position is divorced from Thomistic metaphysics; (2) the argument appears novel and ad hoc; and (3) it is riddled with practical problems that come to the front when we consider real-world scenarios like recent abortion amendments under the Wyoming and Michigan State Constitutions. I then offer a few thoughts gesturing toward a defense of the classical view that, given that a truly unjust law is not a law in the proper sense, a judge may in certain cases ignore it and declare judgment over the case under existing law.
I hope you enjoy.
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