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<\/span>I announced last week that we are beginning a new series this week with David Opderbeck, a professor of law. He will educate us on law — should be fun.<\/i><\/p>\n<\/i><\/p>\n
My question for the opening post in this series is “what is ‘Law’?”<\/b><\/p>\n
Here’s the questions for this post: Which approach – formalism or realism – better accounts for “law” and for the role of “law” in society? As Christians living in a post-industrial, scientific, and\/or postmodern age, are there approaches to “law” we can adopt without falling into either an extreme formalism or an extreme legal realism?<\/b><\/p>\n
Many people respond to this question with what legal scholars would call a “formalist” definition: <\/span>law is a set of rules or principles that govern behavior.<\/i> <\/i> <\/span>This sort of definition raises important questions about the sources of “law” and the functions of a legal system. <\/span><\/p>\n In the Western tradition, “law” historically was rooted in metaphysics – for the Greeks, in the realm of pure thought (Plato’s “forms”); for the Romans, in the divine authority of the Emperor; and for Christendom, in God, particularly as God’s will was mediated through the Church, reason, and the King. <\/span>During the Enlightenment, “law” was still mostly conceived of in formalist terms, but the primary source of law became reason, or “Natural Law.” <\/span>This is why the Declaration of Independence grounds universal human rights in the “Laws of Nature and of Nature’s God.”<\/p>\n<\/p><\/div>\n<\/div>\n By the late Nineteenth Century, however, many legal scholars A famous text in the development of “legal realism”<\/b> is In short, viewed from the “bad man’s” perspective, “law” is The “realist” approach has had a profound effect on Western Which approach – formalism or realism – better accounts for <\/p>\n Further reading:<\/p>\n Larry Solum’s “Legal Theory Blog” includes an excellent Oliver Wendell Holmes’ essay “The Path of the Law” is Harold J. Berman’s two-volume Law and Revolution: The Formation of the Western Legal Tradition<\/a> <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" I announced last week that we are beginning a new series this week with David Opderbeck, a professor of law. He will educate us on law — should be fun. What is “Law”? My question for the opening post in this series is “what is ‘Law’?” Here’s the questions for this post: Which approach –…<\/p>\n","protected":false},"author":70,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[62],"tags":[],"class_list":["post-6057","post","type-post","status-publish","format-standard","hentry","category-law"],"yoast_head":"\n
\n<\/p>\n
\nand jurists had come to recognize that the supposedly universal foundations for
\nformalistic law were neither universal nor secure. <\/span>Broadly speaking, this skepticism was in accord with
\npost-Enlightenment intellectual history.
\n<\/span>These scholars and jurists began to develop what we now call a “realist”
\ndefinition of “law.”<\/i><\/p>\n
\nOliver Wendell Holmes’ essay “The Path of the
\nLaw<\/a>.” <\/span>In that essay, Holmes
\nviews the law from the perspective of a “bad man” – a person whose conduct
\nmight run afoul of the law.
\n<\/span>According to Holmes, the “bad man” cares nothing about whether “law” is
\ngrounded in reason, God, or Natural Law.
\n<\/span>The “bad man’s” only concern is whether, and to what extent, a
\nparticular judge or jury will punish him for his actions. <\/span>As Holmes eloquently put it, “If you want to know the law and nothing
\nelse, you must look at it as a bad man, who cares only for the material
\nconsequences which such knowledge enables him to predict, not as a good one,
\nwho finds his reasons for conduct, whether inside the law or outside of it, in
\nthe vaguer sanctions of conscience.”<\/i><\/p>\n
\nmerely a social construct used to produce whatever social outcome the judge or
\njury deems desirable.<\/b> <\/span>References
\nto reason, God, or Natural Law in relation to “law” are superfluous at best. <\/span><\/p>\n
\njurisprudence. <\/span>The dominant
\nperspectives reflected in American legal education, including “law and
\neconomics” and “critical legal studies,” have roots in legal realism. <\/span>Few law professors today would identify
\nthemselves as formalists (though in some circles there is a move towards a “new
\nformalism”). <\/span>In most law school
\nclassrooms, including my own, judicial precedents are analyzed to examine the
\npolicy motivations behind the rules adopted by the court, not primarily to
\nextract from them universal principles of law.<\/p>\n
\n“law” and for the role of “law” in society? As Christians living in a post-industrial, scientific, and\/or
\npostmodern age, are there approaches to “law” we can adopt without falling into
\neither an extreme formalism or an extreme legal realism?<\/b><\/p>\n
\nentry on formalism vs. instrumentalism<\/a> (realism).<\/p>\n
\navailable online<\/a>
\nand as a part of a useful collection titled “The
\nCanon of American Legal Thought<\/a>.”<\/p>\n
\n<\/strong><\/em> and Law and Revolution, II, The Impact of the Protestant Reformations on the Western Legal Tradition<\/a>
\n<\/strong><\/em> is a magisterial treatment of how Christianity shaped early
\nWestern notions of law.<\/p>\n
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