ABSTRACT
This article attempts to counter the widespread skepticism that surrounds any appeal to natural law principles, starting with Roman law at one end and the appeal to general law under Swift v Tyson on the other. It steers a systematic middle course between moral absolutism, which treats all relationships as fixed and immutable, and modern realist positions that insist the infinite variety of legal approaches to most legal problems proves that there is no solid core to either natural law or general law. The natural law positions set out the basic relationships for marriage and family, for alluvion and avulsion of rivers and streams, for the formation of agreements, and for the transfer of various forms of property under the private law. But at that point, these rules may be modified as needed to create strong Pareto improvements by the introduction of various formalities that improve the security of transactions or, more substantively, which overcome key holdout issues that can arise, for example in the upper airspace on the one side or with caves on the other …
Daniel Epstein, The Natural Law Origins of Private and Public Law (2024) 17 New York University Journal of Law & Liberty 206.
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