HISTORIOGRAPHY OF THEORIES OF LAW
I. General Topics
Nature of Law: Definition
A. Physical Laws, Moral Law, Customs, Positive Law
B. Modern Theories—Austin, Hart, and Kelson, et a1.
C. Law and Gospel (See esp. Kittel, NIDNT, nomos)
Concepts of Law in Historical Perspective
A. Biblical--compared with Near Eastern Codes—Babylonian, Hittite, etc.
B. Graeco-Roman—Classical Natural Law Concepts
C. Middle Ages—e.g. Augustine, Aquinas, et a1.
D. Renaissance—Machiavelli and Sir T. Moore
E. Reformation—Luther, Calvin
F. Classical—Enlightenment Concepts of Law—Grotus, Hooker, Coke, Bacon
G. Enlightenment—Contract Theories of the Founding Fathers
1. Hobbes
2. Rousseau
3. Montesquiu
4. Locke
5. Blackstone
6. Spinoza
7. Wolff
8. Kant
9. Modern Legal Realists—Hegel, Marx, and the Benthamites, i.e. Utilitarians
10. Contemporary Realists and Relativists
11. Representation of Law as Justice
Nature of Legal Reasoning
A. Presuppositionalism
B. Marxism
C. Deductive/Inductive Controversy
D. Scientific Method
E. Legal Reasoning and Ultimate Values—Confrontation with Levi, Legal Reasoning
Epistemological Justification of Law
A. Unarguable given
B. Morals as Mores, i.e. cultural creation of acceptable basis of behavior.
C. Problem of Pluralistic Political Systems, e.g. anarchy. Feudalism, Absolute and Limited Monarchy, Absolute and Representative Democracy.
D. Enforcing the Law—Love, Power, Justice
E. Utopianism of Left or Right
F. Eschatological Perspective
G. Naturalistic Systems of Law vs. Problem of International Law
Law and Human Rights
A. Law and Freedom
B. Law and the Individual
C. Law and State
D. Law, Authority, and Law Enforcement
The great failure in theories of knowledge and science—taking account of interests
guiding modes of knowledge.
Theory is not merely intellectual contemplation; it is also practice.
The Party of Eros: Post World War II radical social theorists—Marcuse, Goodman,
Brown, and the new Roman Catholic Left, e.g. Joseph Petulla.
Basic assumptions:
(1) Common "outlook" on the question of man's alienation and liberation.
(2) Nature-history is the arena of man's self-creation and self-redemption.
Christian Presuppositions
Basic Assumptions of the Christian Weltanschauung
1. Ultimate reality focuses in a person, i.e.. God.
2. Mechanics of physical world exceed our comprehension (Mechanics and explanatory hypotheses vs. God).
3. Way to salvation lies not in conquering nature but in following the will of God (Secular salvation: educational, legal political and economic messianism).
II. Law, Truth, Justice and Cosmic Disorder: Man's Social Nature and Origin of Individual, Social Disorder
1. Evil originates in man's environment: man neither naturally good nor naturally neutral. Learns to do evil by environmental institutions or conditions.
a. J. J. Rousseau, "man is naturally good and that our social institutions alone have rendered him evil."
b. R. Owen's Socialistic Utopia: Man is essentially good and that evil arises from ignorance and harsh living conditions. "In those characters which now exhibit crime, the fault is obviously not in the individual but the defect proceeds from the system in which the individual has been trained." Evil from governments and institutions.
c. K. Marx: Origin of evil outside of man—capitalistic economic system and the deprivations spawned by it. When economic needs are met, harmony will result.
d. B. F. Skinner: Current malaise outside of man—man's social environment. Man "is indeed controlled by his environment." "Practices in which a person is held responsible for his conduct and given credit for his achievements; a scientific analysis shifts both the responsibility and the achievement to the environment."
2. Evil Originates in Man Himself: From Human Nature to Human Condition Source within human nature—man evolves from lower to higher forms of life—and certain innate behavioral tendencies, which may have been functional at one time in man's development, ceased to be functional yet continued to exist, thus plaguing man's attempt to build a good society. For example:
a. Austrian naturalist Konrad Lorenz and anthropologists Lionel Tiger and Robin Fox, The Imperial Animal (NY: Dell, 1971).
b. Cf. Morris' The Naked Ape and Lorenz's On Aggression (Harcourt, Brace and World, E.T., 1966). Lorenz sees aggression in man as a part of his innate inherited nature and as a drive which is presently malfunctioning to the point of being a disease; agression and technological competence to destroy. "Natural Selection" has failed to eliminate the aggressive drive.
c. The Consistent Biblical Witness—Sin, the Behavioral Sciences, and Systems Analysis.
3. The Human Condition and Genetic and Environmental Determinism (via Crick, Monad, Skinner, Wilson, et a1.)
a. Rights--Responsibilities.
b. Freedom—Security.
c. Individualism—Collectivism—Bureaucracy and the Search for Civitas (See Giovanm Sartori, "Democracy," International Encyclopaedia of the Social Sciences, Vol. 4 (NY: Macmiltan and Free Press, 1968; and Robert Ginsberg, ed., A Casebook on the Declaration of Independence (NY: Thomas Y. Crowell, 1967); and Universal Declaration of Human Rights.
III. Changing Models of Western Law
A. Analytical Jurisprudence, i.e., articulating and defining terms in order to view theory of law as a self-consistent system, e.g.. Hans Kelsen's Pure Theory of Law.
B. Sociological Jurisprudence: Effects of law upon behavior, organization powers, etc. involved in sustaining a particular form of society.
C. "Law" always refers to the specialized form of social control, i.e., restriction of individual initiative and freedom for the sake of the whole social structure.
D. Theory of Justice—always concerned with critique of law in terms of the ideals or goals postulated for it, e.g., American ideal of "Justice for all" and the empirical data. Impossible to separate theory of justice from moral political perspective and its resultant world-life view.
E. Justice and Morality —1. Mores; 2. Approved behavior pattern; 3. Moral individualism, e.g. Jean Paul Sartre and Situational Ethicists in general; and 4. Christian view of origin-and significance of moral stipulations—God and Morals. Implications: 1. Relationships of Law and Morality, 2. Moral duty to obey law, 3. Legality and Immorality, 4. Civil disobedience, revolutionary overthrow of legal system
F. Plato—Aristotle and Greek Social Crisis.
G. Stoic Natural Law concept, e.g. Cicero's De republica—Roman Law—a permanent western heritage unto Kant—Hegel.
H. Machiavellian Philosophy of Law—Impossibility of moving from description to prescription.
I. Law and The Leviathian—Hobbes materialistic foundations of Law.
J. The Declaration of Independence, The Constitution, and Natural Rights
K. Montesquieu' De 1'espirt des lots 1748 and Man the measure of his culture and law. Laws and justice determined by particular circumstances in environment and social structure. From will of God to will of the people. Developments from Auguste Comte's Systeme de philosophic positive (1851-54) to Darwin's Origin of Species, 1859. Birth of the Darwinian model of development (Model of change and adaption rather than constancy and inviolability).
L. Kant's Philosophy of Law—all laws based in a priori thought.
M. From Kant to Positivism: From the Laws of Physics to the Physics of Laws.
N. Hans Kelsen's Pure Theory of law, i.e., methodological freedom from value assumptions (His is a Kantian view in essence. See Gouldner's annihilating critique of "Value Free" claims).
O. Oliver Wendell Holmes and Pragmatic Philosophy of Law, 1897—Law is "what the courts will do in fact."
P. Roscoe Pound's Sociological Jurisprudence resulting in complete relativization of law. Law of utility!
IV. Intellectual Sitz im Leben of American (all western) Jurisprudence
Changing Scientific Assumptions results in changing assumptions regarding the nature of Jurisprudence, egs. Positivism, Sociology of Knowledge thesis. Pragmatism, Linguistic analysis tradition and Law Statements, etc.
V. Justice For Some: Christian Critique of Inequity
A. Times of Crisis—and What is Law? (H. L. H. Hart’s The Concept of Law)
B. If we eliminate "Justice" from our definition of law and identity law with naked will of legal sovereign, then there can be no answer to the argument of Thrasy-machus in the Republic that might is right and justice merely the will of the stronger. "Adolf Hitler never acted illegally after he came to power. By the Empowering Act of March 23, 1933, he was given the legal right to alter or suspend certain articles in the German constitution; by a further law of the following year he was given authority to frame a new constitutional law. He acted always within the constitution. Yet it is not in dispute that his advent to power marked the end of the reign of law as it had been known in Western Europe." (Nathaniel Micklem, Law and Laws (London: Sweet and Maxwell, 1952) pp. 51 ft; also Nixon and Watergate—Breach of Faith and Supreme Court, freedom of speech, press, etc.).
C. Alt legal positivists, relativists, and analysts maintain that law is completely autonomous of any moral or religious considerations.
D. Systems Analysis, judges, legislators, attorneys and ordinary men have part in legal systems far more complex than any of the ideas of Holmes, Austin, Kelsen, or Pound in order to make intelligible. Note the definitional fallacy and nominalism. Cannot define law; cannot define truth; cannot define pornography; cannot define a fire; cannot define crime.
E. Laws, Semantics, and Discourse Analysis, Decision-Making Procedures.
F. Laws and the Relationship of Love and Justice: Retributive justice can never produce ethical relationships among men.
G. A Christian Understanding of Justice and Law:
1. Christian influence on Western Law—Christian eschatological category of The Kingdom of God opened up the process of western culture and thus breaking the cyclical bonds of Graeco-Roman philosophies of history. Justice was placed in the dynamic interpretation of history. The Christian view of man as a person expressing the Imago Dei and redeemed by Christ revolutionized the conceptions of law and justice inherited from the Graeco-Roman civilization.
2. Evidence of influence is visible in the introduction of the notion of guilt and responsibility into criminal law and the repudiation of earlier procedural formalism.
3. The Codex Theodosianus and Corpus luris of Justinian bear the marks of Christian influence, e.g., laws affecting the poor, position of women, treatment of slaves, the gladiatorial games, treatment of prisoners, marriage and family, the taking us usury, freedmen, divorce and adultery, punishment of criminals, ownership of property, and the succession and inheritance of children. The abolition of slavery, polygamy, and infanticide stem directly from Christian influence (Compare Rome and America).
4. The Anglo-Saxon legal tradition emphasizes "equity," legal security of personal freedom provided by the celebrated writ of habeas corpus, the Habeas Corpus acts (King Charles II in 1679), the Great Charter of Liberty which was exacted from King John in 1215.
5. Examples reveal that legal tradition of the West has up till now taken co-nizance of the individual worth of human personality because if has been created in God's image (For influence of morals on law see A. L. Goodhart, English Law and Moral Law (London, 1953); R. Pound, Law and Morals (NY, 1926); and H. L. A. Hart, The Concept of Law.
6. Justice and Historical change—Transcendence of Nihilism as Neutrality is impossible contra claim of "Value Free" theory.
7. Theories of Law and Systems Analysis: Theory of Law based on an absolutization of autonomous reason and logical capacity ends up in antinomies and contradictions resulting in fragmentation, i.e., each area claiming to be autonomous fractures the intersystematic relationships (systems analysis) which erupts into personal and cultural crises. Only a world-life-view can organize Law within the structures of the whole temporal world.
8. The Great Challenge: Can man design his own escape, when inspired by fear of death and only instructed by autonomous reason, from hopeless conflict between each person's free exercise of his will in the pursuit of his felicity and the consequent frustration of each by every other individual? Either the Law will exhibit transcendence over a pragmatic functionalism, or the personal-cultural result will be chaos. Totalitarian collectivistic implications are always involved in legal pragmatism (see R. G. Collingwood, The New Leviathan (Oxford, '47).
9. Daniel Bell's challenge to our new Leviathan: The Cultural Contradictions of Capitalism (NY: Basic Books, 1975).
a. Third Way between collectivistic Socialism and irrational hedonism.
b. Equality of unequals and The Great Liberal Myth.
c. From evaporation of Puritan Ethos to instant gratification, when the Protestant Ethic disappeared from bourgeois society, "only the hedonism remained, and the capitalist system lost its transcendental ethic."
d. Anti-Bourgeois individualism and the Youth-Culture of the "60's" (cf. Old and New Left).
e. Capitalists demand right to exploit markets—impulse replaces restraint, feelings triumph over thought.
f. Installment Plan. Hedonism: Mass-Marketing and luxury of freer life style via accumulation of more and more things. Demands for "rising entitlements." What can hold such a society together, when law and justice are perceived through the spectacles of the power of possessions. The foundations of any society. Bell argues, "Is the willingness of all groups to compromise private ends for the public interest." (Cf. H. Thielicke, Theological Ethics, esp. "Compromise.")
g. America lacks a coherent public philosophy or the motivation of an animating religion. Needed—one Christian public philosophy based on God's justice in Christ.
VI. Search for Justice in America (Read Habbakkuk)
Historical perspective on American injustice. "In order to form a more perfect Union, establish justice, insure domestic tranquility. . ." Constitution
A. 1776—-Declaration of Independence and Human Rights.
B. 1787—Constitution.
C. 1789—Hunan Rights and First Ten Amendments, esp. 1,5, and 14.
D. 1863—Emancipation of Proclamation" 13th, 14th Amendments—Bill of Rights binding on alt states and all citizens.
E. 1896—Supreme Court's Separate but Equal decision—Jim Crow Law (Plessy vs. Ferguson) is flagrant violation of Constitution—enforced by terrorism in South and indifference in North. Segregation by Law resulting in Indignity, Intimidation, Inferior Education, Inferior Citizenship, etc.
F. 1954—Oliver Brown vs. Board of Education—School Desegregation. Supreme Court repudiated the Plessy-Ferguson decision (Jim Crow Law) 90 years after Blacks were legally freed, but not concretely—morally freed.
G. 1955—Montgomery—Victory over violence. Rosie Parks refused to give her seat in the front section of a bus to a white passenger, beginning the non-violent Civil Rights Movement.
H. 1957—Climaxed in September in Little Rock's Central High School.
I. 1963—Warren Courts (1953-69) Decisions to protect Civil and Constitutional Rights of Individuals (See Richard Kluger's Simple Justice (NY: Knopf, 1975) regarding the 1954 Brown vs. Board of Education of Topeka)
J. 1974—Law, Justice, Impeachment.
K. Long Days' Journey toward Justice: Shall the minority prevail? 1871 from first to fourteenth amendment (Watson vs. Jones (80 U.S. 579, 728). 1879—Justice Field gave first decision applying 14th Amendment to protection of religious liberty. 1919—Teaching German in Nebraska (Nebraska District of Evangelical Lutheran Synod of Missouri et a1. vs. McKetvie, 175 N.M. 531). 1925—Jehovah's Witnesses—Case on 'Criminal Anarchy' (Gitlow vs. New York, 268 US 552, 655). 1914-1948—Released Time (1947—California Court upheld right to be excused; 1949—New York did the same), 1946—Vashti McCollum plus Chicago Civil Liberties Committee carried case to US Supreme Court got reversal (Illinois ex rel. McCollum vs. Board of Education, 333 US 203)—1951 New York Regents-Prayer Case (Engel vs. Vitale, 370 US 421). Bible Reading and Lord's Prayer— Madelyn Murray and her son, Wm. J. Murray III. Problems created by decisions toward Minority rule and future legal decisions based on precedent.
VII. God's Kingdom, Love, Law, and Justice
A. God's Covenant.
B. God's Righteousness.
C. God's Justice.
D. God's Mercy—Love—Power.
E. Law and Nature of Man.
F. Law and Nature of Society.
G. Law and Institutions, Human Rights, and Justice.
H. Law and Eschatology, tension inherent in it; the last Judgment of all Judgments. (II Pet. 3:7;-Heb. 4:12; Job 40:7-8; Rev. 21: 24-26; I Cor. 3:13; Matt. 7:2; Lk. 19:22; Rom. 1:12-14).
I. Political Theology from Saul, David, and Solomon to the Consummation of the Kingdom of God (Read I/I I Kings, etc., and El1u1, The Presence of the Kingdom).
J. Purpose of Law—Goal—achieve social organization and maintenance of equilibrium of interests (see Ez. 5:6-8; Amos; Hos.; Isa. ch. 23-24:2-5). K. Law, State, and Church (II Chr. 9:8; Rom. 13:1 ft).
1. Is state superior to law?
2. Is law superior to state?
3. Is God's purpose superior to both Law and State and their human limitations?
4. State as expression of law.
5. State as enforcer of Law.
6. State as guardian of law (Ez. 28:2; Prov. 14:28, 16:12, 25:5, 29:4; Mic. 3:1. 12; Isa. 24:5; Heb. 1:4).
7. Role of Church in Realm of Law.
8. The Gospel and God's sedeq and mishpat (Read Amos, Micah, Romans, Gatatians). a. Proclaim and make manifest God's justice—the righteousness of Christ. b. The Church must affirm the Limits of law; judge the legal system, and rectify the law, to attain maximum justice in the fallen universe-read I Thess. 5:21; Acts 3-4; 8; I/II Pet.; Rev.
Bibliography on Philosophy of Law
A. Encyclopaedia Britannica
1. Western Philosophy of Law, Vol. 10, 1974, pp. 714-722.
2. Law, Chapter 46, pp. 962-990.
3. Justice. Chapter 42, pp. 850-879.
4. The Great Ideas, A Syntopican. Vol. I. Britannica Great Books, 1971.
5. Encyclopaedia of Philosophy (Macmillan Press, pp. 254-276).
B. Major Histories of Philosophy of Law
1. F. Marcic, Geschichte der Rechtsphilosophie, 1971.
2. A. VerDross, Abendlandi sche Rechtsphilosophi e, 2nd ed., 1963.
3. E. Wolf, Griechisches Rechtsdenken, 3 vols., 1950-54.
C. Journals: (See all major Law reviews, i.e.. Harvard, Oxford, Cambridge, Yale, Columbia, Michigan, Chicago, et al)
1. Jacques Ellul, "Christianisme et droit. Recherches Americaines." Archives de Philosophic du Droit, Sirey: 22, Rue Soufflot, Paris 5e, 1960, pp. 27-35
2. L. L. Fuller, "Positivism and Fidelity to Law," Harvard Law Review. 71:630-672, 1958.
3.H. L. A. Hart, "Positivism and the Separation of Law and Morals," Ibid.. 71 :593-629, 1958.
4. R. C. Lawlor, "What Computers Can Do: Analysis and Prediction of Judicial Decisions," Journal of the American Bar Association, 49:337-344, 1963.
5. J. Stone, "Man and Machine in the Search for Justice," Stanford Law Review, 16:515-560, 1964.
D. Classical Works
1. Plato (427-347 B.C.), Republic and The Laws (many editions, pb).
2. Aristotle, Nicomachean Ethics (384-322) (many eds., pb.).
3. Cicero (106-43 B.C.) De Legibus (Harvard Loeb Classical Series).
4. Thomas Aquinas (1225-74 A.D.) Summa Theological (many eds., pb.).