{"id":344,"date":"2006-04-12T17:17:08","date_gmt":"2006-04-13T01:17:08","guid":{"rendered":"http:\/\/tgdarkly.com\/blog\/?p=328"},"modified":"2006-04-12T17:17:08","modified_gmt":"2006-04-13T01:17:08","slug":"christian-jurisprudence-and-legal-positivism","status":"publish","type":"post","link":"https:\/\/davidopderbeck.com\/tgdarkly\/2006\/04\/12\/christian-jurisprudence-and-legal-positivism\/","title":{"rendered":"Christian Jurisprudence and Legal Positivism"},"content":{"rendered":"

I spotted an abstract for what looks like an interesting paper by Charles Reid <\/a>at the University of St. Thomas Law School<\/a>, titled “The Three Antinomies of Modern Legal Positivism and Their Resolution in Christian Legal Thought.” The abstract is quoted below, and the paper, which has been published in the Regent University Law Review, is available on SSRN<\/a>. Legal positivism, in brief, is an essentially utilitarian school of jurisprudence that denies any connection between positive (humanly enacted) law and morality or “natural law.” It is the dominant school of jurisprudence in the U.S. Reid’s article provides an excellent overview of what legal positivism claims, and suggests a number of ways in which the deep traditions of Christian jurisprudence provide better answers to some important legal issues. I haven’t had time to digest the article yet, but if you’re interested in law and Christian thought, this seems like an excellent primer that goes far beyond the shallow “Christian America” arguments sometimes found at the popular level.
\n
\nAbstract quoted in full:<\/p>\n

Christian legal thinkers have shaped and formed Western law from
\nthe latter days of the Roman Empire until nearly our own age.
\nHistorically, Christianity is of immense importance to the shape
\nand substance of Western law. However, in the United States
\ntoday, Christian legal scholars who seek to apply
\nself-consciously Christian norms to the resolution of legal
\nproblems are accustomed to thinking that their work is
\nmarginalized. Even so, American Christians who take their faith
\nseriously, who see it as relevant to questions of law, should
\ntake up the task of explaining exactly how it is relevant, how it
\ncan help to resolve pressing legal problems. Harold Berman
\nrecently observed that “[w]ith rare exceptions, American legal
\nscholars of Christian faith have not, during the past century,
\nattempted to explain law in terms of that faith.”<\/p>\n

This article examines the three great antinomies – that is,
\ncontradictions within the law – of modern jurisprudence and
\nsuggests how Christian jurisprudence might help to resolve them.
\nThree antinomies have come to shape much modern thinking about
\nthe nature and function of law: (1) Law consists of commands
\nbacked by power, force, and external compulsion, and questions
\nconcerning the rightness or justice of those commands are not to
\nbe considered when determining whether a particular act of
\nsovereign will should be considered to be law. (2) Law and
\nmorality should and must be viewed as existing as separate and
\napart from one another, such that the moral content of a
\nparticular sovereign decree is not used in determining whether to
\ncount a particular sovereign decree as law. (3) In determining
\nwhether a particular command, rule, or principle should count as
\nlaw, one is allowed only to consider its formal source,
\nirrespective, once again, of its content.<\/p>\n

These are three antinomies in legal analysis that the average
\nlawyer works with every day and that the average student of
\njurisprudence takes for granted as part of the foundation of her
\nor his view of the legal world. They are antinomies because they
\nseem to be at war with our instincts as to what should or should
\nnot count as law. Indeed, they are at war with other deeply
\ncherished elements of the legal order. Law should be about
\njustice. Power should be in the service of justice. Law and
\nmorality should not occupy separate spheres. Law should not only
\nregulate conduct, but should seem to be inherently good.<\/p>\n

The author contends that contemporary jurisprudence, by which he
\nmeans the legal positivism that has come to prevail especially in
\nthe Anglo-American academy, embodies within itself these serious
\ncontradictions – “antinomies” – which can best be resolved by
\npaying studious attention to some of the teachings of modern
\nChristian jurisprudes. In contrast to the great antinomies of
\npositivism, Catholic social thought emphasizes the integral
\nconnections between justice and law; the inseparability of law
\nfrom morals and values; and the need to ground the validity of
\nlaw not in a formal analysis of state authority but in human
\nnature itself.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

I spotted an abstract for what looks like an interesting paper by Charles Reid at the University of St. Thomas Law School, titled “The Three Antinomies of Modern Legal Positivism and Their Resolution in Christian Legal Thought.” The abstract is quoted below, and the paper, which has been published in the Regent University Law Review, […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[5],"tags":[],"class_list":["post-344","post","type-post","status-publish","format-standard","hentry","category-law-and-policy"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p824rZ-5y","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/davidopderbeck.com\/tgdarkly\/wp-json\/wp\/v2\/posts\/344","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/davidopderbeck.com\/tgdarkly\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/davidopderbeck.com\/tgdarkly\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/davidopderbeck.com\/tgdarkly\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/davidopderbeck.com\/tgdarkly\/wp-json\/wp\/v2\/comments?post=344"}],"version-history":[{"count":0,"href":"https:\/\/davidopderbeck.com\/tgdarkly\/wp-json\/wp\/v2\/posts\/344\/revisions"}],"wp:attachment":[{"href":"https:\/\/davidopderbeck.com\/tgdarkly\/wp-json\/wp\/v2\/media?parent=344"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/davidopderbeck.com\/tgdarkly\/wp-json\/wp\/v2\/categories?post=344"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/davidopderbeck.com\/tgdarkly\/wp-json\/wp\/v2\/tags?post=344"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}