From Common Law to Secular Theocracy: The Erosion of Natural Law in Modern Jurisprudence

Modern jurisprudence in the West, especially in the United States, bears the formal trappings of a moral order—courtrooms as temples, judges in robes, rituals of process—but lacks the essence it once embodied. The foundation of law as a discovery of moral truth has been replaced by a codified, ritualized system of interpretive power. This transformation, far from accidental, was set in motion by a slow degradation of the common law tradition, most notably accelerated by the systematization of English common law by Sir William Blackstone. What was once a system of discernment has become a liturgy of fiat.

Blackstone and the Systematization of Common Law

Sir William Blackstone's Commentaries on the Laws of England (1765–1769) was not a destructive work. It was a triumph of legal synthesis. Blackstone collected centuries of judgments and organized them into a coherent structure, enabling widespread understanding and legal education. But in doing so, he froze a living tradition into text. The common law, once a method of discerning right order through precedent rooted in natural law, became a set of principles to be applied by reference, not rediscovery.

Blackstone upheld the importance of precedent (stare decisis) while warning that irrational or unjust decisions should not bind future judges. Yet his own system gave weight and legitimacy to all recorded rulings, and future generations would ignore the exception while institutionalizing the rule.

The Shift to Legal Positivism

American legal culture adopted Blackstone wholesale, particularly in the post-revolutionary period. Law students studied Commentaries religiously. But what followed was not fidelity to Blackstone’s nuance; it was a wholesale embrace of stare decisis as a binding doctrine. Judges became interpreters of precedent, not assessors of truth.

This shift opened the door to legal positivism: the idea that law is what is written, not what is right. Moral discernment was replaced by procedural consistency. Statutory law, administrative law, and later regulatory law would compound this shift, marginalizing natural law almost entirely.

The Constitution and the Unmooring of Law

The U.S. Constitution, though revolutionary in its structure, embedded this transformation. It established a judiciary with no mandate to recognize truth, only to interpret law. By creating a Supreme Court but not anchoring its deliberations to objective moral order, the framers left room for courts to become arbiters of constructed norms rather than discoverers of justice.

The principle of judicial review, cemented in Marbury v. Madison (1803), completed the transition. The judiciary became a sovereign interpretive body. Courts would henceforth issue moral judgments without moral grounding, defining rights, obligations, and societal norms by majority vote. Truth became legislative.

The Rise of Secular Theocracy

What emerged in the 20th century is a judiciary with the form of religious authority but the substance of bureaucratic power. Courtrooms mimic cathedrals. Judges don robes. Appellate courts serve as doctrinal councils. The Supreme Court operates as a magisterium, issuing edicts binding on the nation. But the content of its decisions often contradicts the moral intuitions that gave rise to the common law in the first place.

This is secular theocracy: a regime where moral authority is claimed, but not derived from eternal principles. The system has not abandoned the aesthetic of justice; it has emptied it. Its rituals remain, but its spirit is gone.

The transformation from a natural law tradition to a positivist legal order has produced a crisis of legitimacy. Citizens comply, but they no longer believe. Judges rule, but they no longer judge. Blackstone never intended this outcome, but his work was a catalyst. The law, once a process of moral discovery, is now a liturgy of power. To restore justice, we must recover law not as code, but as conscience anchored to truth.