Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. The Deists and their continental counterparts the "philosophes" of the French Revolution and the so-called Enlighten- ment had no problem with a natural law embedded in human con- science, but they firmly rejected the historic Christian claim to a controlling special revelation in Scripture.
Characteristically, Tho- mas Paine's tract, The Age of Reason, not only sets the "Book of Na- ture" over against the "Book of Scripture" but devotes its entire second half to listing alleged errors and contradictions in the Bible, in an effort to destroy its credibility.
The American "Founding Fa- thers" were deeply influenced by such thinking and based their concept of natural rights, as did the authors of the French Declara- tion of the Rights of Man, on general and not special revelation: "Nature and Nature's God"—not the God of Scripture, the God who in Christ reconciles the world unto Himself. Then, by the end of the 19th century, owing to Darwinian "natu- ralism" taking the ideological stage-centre, even the Deistic creator- god was dropped from the scenario, and natural-law theory be- came entirely anthropocentric.
Mankind was supposed to manifest, on an entirely naturalistic basis, the required ethical principles— or 4. Thomas Jefferson, for example, could not stand the influence Blackstone as an orthodox Christian and a political Tory had on American students of the law: see Edward Dumbauld, Thomas Jefferson and the Law Norman: University of Oklahoma Press, , especially pp. Modern Theology and Contemporary Legal Theory 21 the ability to arrive at such—which could serve as an adequate cri- terion for judging positive law and existing legal systems.
Needless to say, this emasculated form of jusnaturalism was en- tirely incapable of delivering what was expected of it. Nineteenth- century anthropologists were already pointing out the tremendous diversity of standards, ethical norms, and moral practices in the world's cultures; how was it possible, then, to sustain the idea of a common human "conscience" adequate to judge positive legisla- tion? Moreover, even supposing that such a common standard could be demonstrated, would that make it right?
In , English philosopher G. Moore identified as the "naturalistic fallacy" the assumption that an "is" here, common ethical beliefs can be re- garded ipso facto as the equivalent of an "ought" here, proper natu- ral law. And the hopeless generality and lack of specificity of the humanistic natural-law principles made the viewpoint of little practical utility in the legal field. What assistance could secular nat- ural-law theory offer to the day-to-day work of the legislator or judge when it defined true law as "the art of what is good and equi- table" Celsus or "the abstract expression of the general will exist- ing in and for itself" Hegel or "the organic whole of the external conditions of the intellectual life" Krause?
This jurisprudence came to be known on the European continent as legal positivism, having obvious affinities with the sci- 6. Roland Gray 2d ed. For an introduction to the modern schools of legal thought discussed in this paper, the reader without training in law or jurisprudence may wish to consult Part II of Den- nis Patterson ed.
The most important influence in the rise of this new movement was utilitarian philosopher and social reformer Jeremy Bentham, who in turn provided the oft-regarded "father of legal positivism," John Austin, with many of his ideas. Bentham wrote a lengthy cri- tique of Blackstone's Commentaries in which he declared that Black- stone's "natural and imprescriptable rights" were but "nonsense on stilts.
Alf Ross, the most influential of the three, asserted in the preface to his work On Law and Justice that "the fun- damental legal notions must be interpreted as conceptions of social reality, the behaviour of man in society, and as nothing else. He believed that he was casting aside "ought-propositions" in favour of simple, empirical "is-proposi- tions.
Jeremy Bentham, Anarchical Fallacies, in his Works, ed. John Bowring Edinburgh, , II, Robert Campbell 4th ed. Eastwood and G. Modern Theology and Contemporary Legal Theory 23 This analysis of a simple model is calculated to raise doubts as to the necessity of metaphysical explanations of the concept of law.
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Who would ever think of tracing the valid norms of chess back to an a priori validity, a pure idea of chess, bestowed upon man by God or deduced by man's eternal reason? The thought is ridiculous, because we do not take chess as seriously as law—because stronger emotions are bound up with the concepts of law. But this is no reason for believing that logical analysis should adopt a fundamen- tally different attitude in each of the two cases. He maintained that each le- gal system is unique and logically uncriticisable from the outside or from the standpoint of any other legal system.
A legal system Stufenbau will necessarily have a fundamental root principle grounding it the Grundnorm and one cannot subject that basic norm to any higher standard.
In Kelsen's own words: "The search for the reason of a norm's validity cannot go on indefinitely like the search for the cause of an effect. It must end with a norm which, as the last and highest, is presupposed. The "first cause" is not a transcendent God but rather a necessitarian ultimate norm of the human legal system. American legal realism put as might be expected a practical twist to the notion that law is entirely comprehensible humanisti- cally and sociologically.
Philosophical utilitarians and pragmatists William James and John Dewey indirectly assisted the develop- ment of the jurisprudential realism of Oliver Wendell Holmes, Jr. Holmes coined the famous adage that the law is nothing more pretentious than "the prophecies of what the courts will do in fact. Oliver Wendell Holmes, Jr. The formal liter- ature of the law the opinions of the higher courts, the law reports are, in his view, after-the-fact "rationalisations," for legal decisions in reality are made by the weighing of social needs.
It has contributed mightily to unprincipled court decisions such as Roe v Wade which are little more than at- tempts to identify the social forces in the contemporary society and pander to them: Pilate pragmatically releasing Barabbas and giving over our Lord to be crucified because of the pressure of the crowd.
Indeed, just as the two World Wars of our century dealt the deathblow to the old religious mod- ernism, so those same evidences of institutionalised human de- pravity cut the ground from under positivistic jurisprudence. As the great Belgian philosopher of law Ch. Perelman succinctly put it: Modern Theology and Contemporary Legal Theory 25 This conception of juridical positivism collapses before the abuses of Hitlerism, like any scientific theory irreconcilable with the facts.
The universal reaction to the Nazi crimes forced the Allied chiefs of state to institute the Nuremberg trials and to interpret the adage nullum crimen sine lege in a non-positivistic sense because the law violated in the case did not derive from a system of positive law but from the conscience of all civilized men. The conviction that it was impossible to leave these horrible crimes unpunished, although they fell outside a system of positive law, has prevailed over the positivistic conception of the grounding of the law.
In many re- spects, the work of H. Hart, Ronald Dworkin, and the neo- Kantian political philosophers such as John Rawls and Alan Gewirth remind us of the endeavours of Barth, Bultmann, and Tillich to create a meaningful theology after the collapse of the old modernism while still maintaining its position that the Bible is in- capable of serving as a trustworthy historical revelation. Hart, late professor of jurisprudence at Oxford, recog- nised that the Austinian-Benthamite command theory of law was inadequate.
He therefore saw the need to talk about a "minimum content of natural law": on semi-sociological premises, he argues that all law must take into account five basic facts about human na- ture: human vulnerability, approximate equality of strength and in- tellect, limited altruism, limited resources e. Alan S. Rosenbaum Westport, Conn.
What happens, for example, when one of the facts say, human vulnerability conflicts with another say, limited resources?
Which ought to prevail? Without genuine, extrinsic norms, Hart cannot tell us. Hart correctly sees that the Austinian notion of all law being di- rect commands is in fact hopelessly simplistic. Many genuine laws do not function that way at all e. He therefore stressed that not only is there a direct application of law by way of what he calls "primary rules," but also there are "secondary rules" which determine ultimately what goes into the system and whether and how the system can be changed.
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Hart identified three kinds of "secondary rules": the rule of change; the rule of adjudication; and—most important—the rule of recognition, by which decisions are made as to what is and what is not a true part of the legal system. But though Hart was a practical English thinker, lacking Kel- sen's Germanic, metaphysical temperament, he remained a positiv- ist to the end: his rule of recognition has the same ultimate limitation as Kelsen's Grundnorm. The rule of recognition at the root of a given legal system stands above and beyond extrinsic criticism.
One can criticise the lesser rules in the system for their lack of con- formity with that rule, but since each legal system exists sui generis, there is no way to question the system's rule of recognition itself. To use Hart's own analogy, it is like the standard metre bar in Paris, by which all metre sticks are measured: there is no sense in asking if it itself is of the right length. One thinks of Karl Barth— desperately trying to restore the essential themes of sin and grace to a denuded modernistic theology, but unable to succeed in prin- Modern Theology and Contemporary Legal Theory 27 ciple because he could not bring himself to reject modernism's higher criticism of the Bible.
Hart's successor as professor of jurisprudence at Ox- ford. Dworkin takes Hart's positivism a step further.
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He says: to un- derstand a legal system, you cannot even stop with rules; you must go on from rules, primary and secondary, to principles. What does he mean by "principles"? Rules, he notes, are all-or-nothing, whereas the principles behind the rules "incline" toward particular legal results. Illustration: the legal principle that no-one must profit from his or her own wrong.source url
That is not all-or-nothing. Be- cause of the rule of adverse possession often wryly called "legal theft" — the rule that says that if you can occupy in an open, unin- terrupted, and hostile manner for a sufficient length of time a par- ticular piece of land under the conditions the common law sets forth, you may obtain the legal title or interest to it. In such an in- stance, you will profit from your own wrong.
So, behind the rules there lie general principles, inclining to but not forcing particular legal consequences. And where, pray tell, do these fundamental principles come from? Here, Dworkin introduces the ideal judge—a kind of Pla- tonic philosopher-king in judicial garb. Judge Hercules develops the needed principles in the course of his judicial activity. Writes Dworkin: You will now see why I call our judge Hercules.
He must con- struct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory provisions as well. Dworkin offers the following may we say: hopelessly inadequate account: Minneapolis: Bethany, , pp.
We argue for a particular principle by grappling with a whole set of shifting, developing and interacting standards them- selves principles rather than rules about institutional responsibil- ity, statutory interpretation, the persuasive force of various sorts of precedent, the relation of all these to contemporary moral practices, and hosts of other such standards. Dworkin argues for "law as integrity," and by this he means even-handedness and consistency of application.
He points out that we would never stand for "checkerboard" legal approaches such as resolving the pro-life, pro-choice conflict by making abortion crim- inal for pregnant women born in even years but not for those born in odd years. Nazi law was quite even-handed and consistent: all Jews were to wear the yellow star and none of them could, for ex- ample, hold a position of public trust. He sees I have critiqued his non-solution in my article "New Light on the Abortion Controversy?
Dutton, ; Les lois de Vichy, ed. Schneider Cambridge, Mass.
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Modern Theology and Contemporary Legal Theory 29 that traditional positivism fails in that respect, and he clearly longs for more solid, principled grounds for legal decision-making. His amorphous principles, however, and the mystical functioning of his ideal judge, Hercules, remind us a bit of Rudolf Bultmann, whose reaction to Barthian inadequacies was to turn what should have been a theology of objective, revelatory truth Luther's "the en- tire gospel is extra nos" into a confused mess of existential, subjec- tive pottage. Similarly, the most influential political philosophers and rights analysts of our time John Rawls, Alan Gewirth have at- tempted to develop along neo-Kantian lines a substitute for dis- credited natural-law theories and inadequate positivisms.
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