The Law of Nations at the Origin of American Law
The Law of Nations at the Origin of American Law
This chapter proposes a new way of understanding the relationship between domestic law and the law of nations in the late eighteenth and early nineteenth century. It develops a theoretical structure by elaborating two competing models of order: project and system. These models differ fundamentally in their understanding of the source of order: a project relies on an external principle of order; a system relies on an immanent principle of order. Modern ideas of law have had to negotiate the tension between project and system. This paper argues that in the early American Republic, one locus of this tension was in the relationship of domestic, constitutional law to the law of nations, and that the reconciliation took the form of a theodicy.
Keywords: Supreme Court (United States), John Marshall, law of nations, theodicy, Immanuel Kant, social contract, secularization, Thomas Jefferson, property, violence
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