Jamie G. McWilliam has posted "Fixing" the Classical Legal Tradition (103 Denv. L. Rev. (forthcoming 2026)) on SSRN. Here is the abstract:
A “moral turn” in jurisprudence—in which scholars and judges are making overt appeals to the classical legal tradition and its natural law principles—has been gaining steam. Originalism, with its focus on posited law, is increasingly viewed as a morally empty jurisprudence. But positive law is a necessary, though not sufficient, component of the classical tradition, providing the means for a society to advance the common good. With that in mind, this Article explains how certain core originalist theses provide a deeper understanding of the mechanics of how positive law fulfills its moral role. It therefore argues that these concepts should be accepted by classical legalists. Importantly, this does not mean that the natural law requires interpreters to be “originalist.” Rather, they should view discrete originalist theses as part of a larger jurisprudential whole that incorporates the background moral justifications for law.
This Article begins by showing how the classical tradition, which grounds law in reason and the common good, provides a richer jurisprudential framework than the morally neutral approach characteristic of positivist originalism. It then examines how three key originalist commitments—the theory of legal change, the fixation theses, and the constraint principle—align with and enhance the classical tradition’s understanding of positive law. The theory of legal change preserves lawmakers’ determinations until lawfully changed or displaced by a new determination. The fixation thesis keeps interpreters honest about what lawmakers sought to convey through their promulgated instrument. And the constraint principle guides judges from the legal text’s original meaning to the determination embodied therein. These principles operate together to provide the settlement and stability necessary for the community to flourish.
By situating these three theses within the broader tradition, this Article develops a practical framework for interpretation that is honest to both the lawmakers’ prior determinations and the law’s background principles. The interpreter begins with an historical understanding of the legal text. In most cases, that decides the issue. But sometimes the text is underdetermined, providing a range of historically plausible interpretations. Then the interpreter must appeal to the principles determined through the law in order to decide on the proper interpretation. Drawing on illustrative case studies, including blasphemy laws under the First Amendment and the disarmament of felons under the Second Amendment, this Article reveals how incorporating these originalist theses into classical legalism offers principled guidance, preserving the stability of textual meaning while advancing the moral purposes of law. This incorporation provides a morally grounded, historically informed, and practically robust framework for contemporary legal interpretation.
