Conclusion: A Glimpse of the Future?

Abstract

Abstract The voyage of American legal thought has here been traced from one stage to another, from one substage to another. Much of this story has turned on the interrelated ideas of foundations and progress. In the premodern era, natural law principles seemed to undergird the legal system. During the earliest decades of the nation’s history, legal and political thinkers were largely concerned with preserving the republic and its commitment to eternal and universal principles. From approximately 1820 through the Civil War, though, jurisprudents combined their conviction in the existence of natural law principles with a belief in a premodern idea of progress. Natural law still provided the foundation for the legal system, but America apparently could progress by instrumentally and pragmatically implementing those principles. As such, natural law seemingly provided both the goals and the limits for American jurisprudents and jurists as they sought to perfectly realize the eternal and universal principles. After the Civil War, American legal thought entered its modernist period with the onset of positivism: for the most part, jurisprudents repudiated natural law. Consequently, the idea of progress was unleashed from the natural law limits that inhered during the premodern era. Progress came to be seen as potentially endless, dependent solely on human ingenuity. Even with the rejection of natural law principles, though, modernist jurisprudents retained a desire for grounding the legal system on a firm foundation. Without such a foundation, modernists feared, the law would be overly subjective and relative—even nihilistic.