By Francis J. Mootz III
ISBN-10: 0511508611
ISBN-13: 9780511508615
ISBN-10: 0521883687
ISBN-13: 9780521883689
Lately, there was great development of curiosity within the connectionsbetween legislation and philosophy, however the variety of techniques that declare to be workingat the intersection of those disciplines may well recommend that this sector of inquiry is sofractured as to be incoherent. This quantity gathers top students to supply focusedand basic articulations of the position that philosophy may perhaps play at this junctureof the historical past of yank criminal thought.The quantity marks the seventy-fifth anniversary of Karl Llewellyn’s essay “On Philosophyin American legislation” during which he rehearsed the wide improvement of Americanjurisprudence, clinically determined its modern failings, after which charted a efficient pathopened through the variegated scholarship that claimed to start up a pragmatic process tolaw and criminal thought. The essays are written within the spirit of Llewellyn’s article: they aresuccinct and direct arguments concerning the strength for bringing legislation and philosophytogether.
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Hence Dooyeweerd’s exhaustive critique of “the pretended autonomy of reason”; because of the relativity of rational knowing, reason is not the “measure of the truth about . . the world” (Hart 1985: 151). Having acknowledged his own religious starting point, Dooyeweerd went on to construct a normative theory of law that is both part of the natural law tradition and highly critical of many natural law conceptions. For purposes of comparison to Llewellyn, however, Dooyeweerd’s critical method parallels the realist effort to reveal the “heavily operative” factors (Llewellyn 1931: 1237) – apart from legal doctrine, itself indeterminate – that produce court decisions.
Not until Cardozo undertook the job of re-interpretation of the fundamental point of view (beginning in 1925) may one regard sociological jurisprudence as even beginning to win general acceptance among the body of the guild. This calls for explanation. The needs of the times were there, and felt. Sociological jurisprudence ought, it would seem, to have found an early echo. I find a number of factors to which one might appeal, yet have no great confidence in any of them being operative. The “law” under discussion was the law of the schools, and the law of the schools had for some decades been divorced from life.
Leiter (2005: 58–9) therefore identifies in Llewellyn a certain “normative quietism;” Llewellyn of course had normative preferences, but he did not view realism as a normative guide for judges. ” According to Llewellyn’s own historiography, these would seem to represent hangovers of natural law thinking. I am not criticizing realism – I agree that law and legal doctrine are indeterminate, and that other factors are in play. And I agree that a deeper understanding of how law actually works and more knowledge of social conditions – facts – are always helpful.