Post actualizado el día September 27, 2026 by DeiviSanzPlay
That of common law is one where an unjust law (lex iniusta) loses its binding force. What the textbook academic discussion conceals is that this doctrine operates functionally in political review, which interprets it as implicitly incorporated into the constitutional text, above ordinary law. It applies the reasonableness test under the due process clause (5th and 14th Amendments) to strike down a law if its content offends fundamental principles of justice. It sets the measuring stick at the threshold of “contemporary consensus” or “morality rooted in tradition,” not at subjective values. The first time I implemented this analysis in an economic regulation case, I learned that the typical mistake is confusing “natural law” with the judge’s personal tastes; the real discipline lies in verifying whether a public policy principle exists that has been previously codified by the legislature, thus avoiding naked activism.
