· web viewg. naturalistic systems of law vs. problem of international law law and human rights a....
TRANSCRIPT
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. MooreE. Reformation—Luther, CalvinF. Classical—Enlightenment Concepts of Law—Grotus, Hooker, Coke, BaconG. Enlightenment—Contract Theories of the Founding Fathers
1. Hobbes2. Rousseau3. Montesquiu4. Locke5. Blackstone6. Spinoza7. Wolff8. Kant9. Modern Legal Realists—Hegel, Marx, and the Benthamites, i.e. Utilitarians10. Contemporary Realists and Relativists11. Representation of Law as Justice
Nature of Legal Reasoning
A. PresuppositionalismB. MarxismC. Deductive/Inductive ControversyD. Scientific MethodE. Legal Reasoning and Ultimate Values—Confrontation with Levi, Legal Reasoning
Epistemological Justification of Law
A. Unarguable givenB. 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, JusticeE. Utopianism of Left or Right F. Eschatological PerspectiveG. Naturalistic Systems of Law vs. Problem of International Law
Law and Human Rights
A. Law and FreedomB. Law and the IndividualC. Law and StateD. Law, Authority, and Law Enforcement The great failure in theories of knowledge and science—taking account of interestsguiding 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."
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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.
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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 RightsK. 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
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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
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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.
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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.
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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.).5. Hugo-Grotius—father of International Law.6. Rousseau, The Social Contract, 1762 (many eds., pb.).7. Hobbes, Leviathan. 1651.8. Spinoza, Ethica. 1674.9. Bentham, Principles of Morals and Legislation.10. Kant, Philosophy of Law, 1798.11. Hegel. Philosophy of Right. 1821.12. Mills, On Liberty. 1859.13. Holmes, The Path of Law, 1697; Law in Science and Science in Law, 1899.
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E. Philosophical, Sociological, Politico-Economic Foundations
1. T. Anderson, Morality, Law, and Grace (Inter-Varsity Press, 1972, pb).2. Gurvitch, Sociology of Law. 1942.3. Auerbach, Jerotd S., Unequal Justice (Oxford University Press, 1976).4. Pound, An Introduction to the Philosophy of Law (Yale, 1955).5. Ellul, The Theological Foundations of Law (Seabury. E.T. 1969, pb).6. G. A. Schubert, D. J. Danelski. eds.. The Judicial Mind. 1946-1963 (1965)
Case Study: Law and Civil Religion
Law, Justice, and Bicentennial Celebrating Justice
How far have we come from "Justice For All" to the fact that "America's lawyers have overpriced the poor and middle-income citizens' access to justice; corporate lawyers have failed in their role as "keepers of the corporate conscience"' prosecuting attorneys more often seek to win by any means necessary rather than to serve just principles of law; the judicial system is decaying; and the organized bar is more interested in self-service than public service.
Examples of General Injustice—
The legal profession is a "Growth Industry." Mark Green reports that the Bureau of the Census data shows that lawyers had a gross income of $9.7 billion and a net profit of $5.2 billion in 1972. The net profit for 1972 is four times greater than the 1950 gross income of $1.3 billion. We are therefore not shocked to read the Illinois Bar Association's 1960 statement about money, which declares that "the respect for the legal profession and its influence in the individual community will be raised when the lawyer occupies his proper place at the top of the economic structure." Shades of Marxian economic determinism!
Present legal procedure continues to produce economic overkill by providing justice according to the ability to pay for it. Who serves the nation's 30.5 million poor people, who are now aided by only 5,000 lawyers—one for every 7,000 persons? Who believes the judgment of that ubiquitous editor and moral conscience of our technological society, Ralph Nader, when he declares that "a lawyer's first client is the public."? In response, oddly enough. Jay M. S. Myser, member of General Motor's legal staff, asserts that many in-house corporate lawyers more often serve their own bonus-influenced interests, sometimes to the detriment of the corporation and the public. Countering the 5,000 lawyer-lobbyists in Washington, who flash their American Express cards on behalf of nearly every major American consumer industry, are a paltry 190 full-time public interest lawyer-advocates who speak for the citizen.
"Public service and self-service do not always overlap" at the American Bar Association either, according to Mark Green, the ABA continues to resist no-fault auto insurance proposals, and it may not be coincidental that "crash litigation . . . which produces 16% of the gross legal product," or that all 10 members of the ABA's Special Committee on Automobile Insurance Legislation "have been engaged ... in auto negligence cases, the very type of litigation they have been asked to consider abolishing."
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National Scene
"Five years after Richard Nixon vowed to attack crime" writes former Attorney General Ramsey dark, "he left as his legacy the most criminal administration in our political history." To obtain convictions—from the Chicago conspiracy 8, to Ellsberg, to Wounded Knee—- government officials have wiretapped, attempted to influence a judge, failed to disclose evidence, and broken into an office.
We must realize as does Jethro K. Lieberman, legal affairs editor of Business Week magazine, that ". . . we as a nation can no longer tolerate the monopoly the legal profession holds on our everyday lives. The true ethic of a profession is service for the needs of all people. We will begin to practice these ethics only when the bar thinks more about service and less about the bar.Review of book edited by Ralph Nader and Mark Green, "Verdicts on Lawyers," in Chicago Tribune book section.
"Consider this true episode in the long-run saga of legal nonsense, related by Monroe Freedroan, dean of Hofstra University Law School: "A woman arrives at a metropolitan courthouse holding a small boy by the hand. She speaks almost no English at all. She is intimidated and confused by the imposing surroundings. All she knows is that she is required to be someplace in that building because her son has been arrested or her landlord is attempting to evict her family. People brush by her, concerned with their own problems.
'Then a man appears, smiles at hers, and asks in her own language whether he can help her. Through him, she meets and retains the roan's employer, a lawyer who guides her to the proper place and who represents her interests. In my view, that lawyer should have been given a citation as Attorney of the Year. Instead, he was prosecuted as a criminal, convicted of the misdemeanor of soliciting business on behalf of an attorney, subjected to disciplinary proceedings, and censured by the court."
Verdicts is quite an indictment, and the evidence is well marshaled and clearly written. Take the case of the lawyer who was censured for trying to help the confused woman in the courthouse. If he were a corporate lawyer and she lived on the Gold Coast, she might have found his "ad" in The Attorney's Register or a similar law list to which potential corporate clients subscribe. That type of public notice does not violate anti-advertising or anti-soliciting rules of the ABA. To put it more succinctly, as Freedman does, "Ambulance chasing may be reprehensible, but corporation chasing carries an ABA seal of approval."
Systems Analysis and Social Theory:
Modern Social philosophy continues to be dominated at least in the U.S. by the positivist notion of science as "value free." In part this orthodoxy is the result of the prestige of the methods of natural science, and in part, it is an historical tradition within the academic world of social science. Behaviorism, Structural-Functional ism Systems Theory, and the new linguistic Structuralism share the viewpoint that social science is value neutral.
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Foundation of Law and its interconnections with Truth, Morals (Ethics) Justice, Freedom, Power, and Love (see both Niebuhrs- and Tillich's Love Power and Justice.
1. Value of a particular social arrangement for promoting human goals.2. Disenchantment with classical Marxism and Liberalism of the Pragmatists.3. Ontological issues and the status of Values in determining the choice of a theory to guide
social investigation and practice.4. Radical Social Thought and Freedom and the Critical Theory of the Frankfurt Institute for
Social Research: a. Max Horkheimer b. Theodor Adorno c. Eric Fromm d. Herbert Marcuse A CHRISTIAN CRITIQUE: REQUIEM AETERNAM Deo and The Foundations of Justice
Introduction: Projections in a Christian Forum, i.e., public place, center of judicial matters) "That He might be both Just and the Justifier" (Read all of Romans and Galatians)
"The spontaneous willingness to obey the law, to respect the rights of others, to forego the temptation of private enrichment at the expense of the public weal—in short, to honor the 'city', of which one is a member." Daniel Bell, Cultural Contradictions of Capitalism (NY: Basic Books, 1976).
"Capitalism is both successful and encourages mindless pursuit of hedonism"—which Neo-Marxian analysis directly confronts.
"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of human family is the foundation of freedom, justice, and peace in the world." Preamble—Universal Declaration of Human Rights
Man's basic rights defined as "the sum of all the rights, privileges and freedoms that every human being in society must enjoy to insure both his dignity and the full development of his personality" Rene' Cassin (died Feb. 20, 1975, in Paris of pneumonia; Nobel Peace Prize laureate of 1958; French Jurist—chief author of UN's 1948 Declaration of Human Rights—July, 1970 opened the first academic session of the International Institute of Human Rights, the first time that human rights had been placed in the context of scientific study).
"I forgot to ask you first what sort of acquittal you want. There are three possibilities; that is, definite acquittal, and indefinite postponement. Definite acquittal is, of course, the best, but I haven't the slightest influence on that kind of verdict," Franz Kafka, The Trial (NY: The Modern Library, Random House) 1955.
A. Justice: C. K. Alien, Aspects of Justice, 1958. E. Bodenheiroer, Treatise on Justice, 1957; H. Kelsen, What is Justice?. 1957; C. Perelman, Justice. 1957; also his The Idea of Justice and the Problem of Argument, E. T., 19S3; E. M. Schur, Law and Society, 1968; Frank Parker. S. J., The Law and The Poor. 1975 (Maryknoll, NY: Orbis Books); T. P. Fenton, Education for Justice (Orbis, 1975 pb); Msgr. J. Gremiltion, The Gospel of Peace and Justice. 1976 (Orbis Bks. pb).
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The last three works from Latin American Roman Catholic revolutionaries seeking justice in the "Third World" via Neo-Marxism as model for Christians to follow.
B. Christian: Law School - The International School of Law, 1717 Rhode Island Avenue, N.W., Washington, D.C. 20036. Legal Organizations: Christian Legal Society, Box 2069, Oak Park, IL 60303; The Lawyers' Christian Fellowship, 3931 E. Main St., Columbus, OH 43209. Kittel, TWNT "Dikaiosune" Vol. I, pp. 204-14; and L. Cerfaux, The Christian in the Theology of St. Paul (NY: Herder and Herder, E.T., 1967, pp. 373ff.)
I propose to develop the problem of the Christian stake in justice in America by giving the trajectories along which path American legal philosophy has moved from positivism to pragmatism and the implications for the American dilemma regarding the possibility of justice for all versus justice for some.
I. Presuppositions of Western thought and their implications for Law and Justice:II. Christian Presuppositions and their implications for Law and Justice:III. Changing Concepts of Law and Justice in Western Jurisprudence:IV. Sitz im Leben of American Jurisprudence:V. Justice for Some: Historical Perspectives on Inequity.
Presuppositions of Western Thought
The secularist reduction of the sacred to a complex of pre-scientific cosmologies, outmoded metaphysical projections, or merely psychological cultural economic phenomena, has been plausible to an increasing number of persons in the contemporary world. There are three configurations of basic assumptions of revolution in Western thought:
(1) Graeco-Roman or classical outlook—flourished to the 4th century; (2) Triumph of Christianity—post 4th century replaced classical outlook by Christian world-view; (3) Christian Weltanschauung dominated western European education and civilization until 17th century rise of modern science inaugurated a third way—"the modern mind."
A. Basic Assumptions of the Outlook of the Contemporary Mind:
1. Reality may be personal but is less certain and less important than that it is ordered.2. Man's reason is capable of discerning this order as it manifests itself in the laws of nature.3. The path to human fulfillment, i.e., redemption or salvation, consists primarily in discovering
these laws, utilizing them where this is possible and complying with them where it is not. (Salvation through the Behavioral Sciences and Social Engineering).
B. Law, Justice, and the Frankfort School of Social Research
1. Nature of Critical Knowledge, i.e.. Dialectical Logic.2. Relationship of Theory and Practice.3. Control and Liberation of Critical Consciousness (i.e., necessary condition for revolutionary
social/cultural change).
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4. Labor and its relationship to man's Essence.5. Industrial Technological Society and its impact on liberation (basis for non-aggressive, non-
repressive society); Vested Interests, Values, and Repression, Domination and Aggression.6. Kant's Epistemology and Hegel's Dialectical Method (and Dialectical theory of Society).7. Phenomenology, critique of certain types of science models, and emphasis on primacy of life-
world.8. Hermeneutics and historical interpretation of meaning (Heidegger-Bultmann; Dilthey,
Gadamer, Hirsch and the Post-Bultmannians.)9. M. Weber's theory of rationalization and its contribution to the development of one-
dimensional society.10. Adaptation of Freud's psychoanalytic theory as the basis of radical social theory (esp.
Marcuse and Habermas, and their philosophy of history and theory of knowledge).11. Habermas’ three types of knowledge: Natural science, cultural science, and critical science. VI. Law and the Judicial Process
A. TrialB. JuryC. Cost of JusticeD. TyrannyE. Treason
VII. Freedom & the Right to Disobey: Great Documents in History of the Idea of Freedom.
A. Magna CartaB. Declaration of Independence—I 776C. U.N. 1948D. International Institute on Human Rights—University of Strasbourg, France.E. Law, Freedom, Guilt, PunishmentF. Availability of Law to all free men—Reign of Law vs. Reign of ManG. Legal Case Studies
VIII. Sociology of Law
A. Genetic Sciences and their influence on the Model shifts in the nature of Law.B. The Sociology of Knowledge thesis applied to contemporary Philosophy of Law, i.e., cultural relativism and Law.
IX. Psyco-Analysis (Psychology) and Law
A. Legal decision making in light of psycho-analytic theories B. Justice, Rights and Responsibility—Individual-Society
X. Forensic-Medicine:. Legal Dimensions of Medicine
A. Theories of disease and Law
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B. Law, Medicine and Legal Responsibility (i.e., hospitals, insurance, etc.).
XI. Rawl’s Theory of Justice:
A. Rawl’s theory of Justice as FairnessB. Fairness and UtilitarianismC. Justice and IndividualismD. Justice and PragmatismE. Justice and Pluralism
Bibliography Kant, E. Philosophy of Law (A. M. Kelley Pub., reprint, 1974).Rawl, John. A Theory of Justice (Harvard University Press, 1971).
ROMAN STATE AND THE CHRISTIAN CHURCH
Indispensable reference work: P. R. Coleman-Norton. Roman State and the Christian Church (A Collection of Legal Documents to 535 A.D.). (London: SPCK, 1966, 3 volumes). W. H. C. Frend, Martyrdom and Persecution in The Early Church (New York; New York University Press, 1967).
1. Rescript of Trajan on Trials of Christians - ca 113.2. Rescript of Hadrian on Trials of Christians3. Mandate of Aurelian on Persecution of Christians - ca 273-2744. Rescript of Maximin II on Anti-Christian Petitions - ca 311-3125. Letter of Constantine I on the Donatist Schism 343 A.D.6. Edict of Constantine I on Military Prayer, (?) 321.7. Edict of Constantine I on Behalf of Christians, 324.8. Letter of Constantine I on Conformity with Orthodoxy, 325.9. Mandate of Constantine I on Clerical Privileges, 326.10. Letter of Constantine I on Jewish Molestation of Christians, 335-6.11. Letter of Constantiue II on Clerical Exemption from Taxation, 343.12. Letter of Julian II on Christian Teachers, 362.13. Edict of Julian II on Christian Riots in Bostra, 362.14. Mandate of Valentinian I and Valens on Exclusion of Bakers from the Clericate, 365.15. Letter of Valentinian I, Valens, and Gratian on Protection of Graves, 367-75.16. Mandate of Valentinian I and Valens on Judicial Process against Christians on Sunday, 368-
73.17 Edict of Theodosius I on Exemption of Bishops as Witnesses in Lawsuits, 381.18. Mandate of Gratian, Valentinian II, and Theodosius I on Exemption of Christian Actresses
from the Theatre, 381.19. Mandate of Gratian, Valentinian II, and Theodosius I on Special Courts for Prosecution of
Heretics, 382.20. Mandate of Gratian, Valentinian II, and Theodosius I on Disposition of Remarried Persons'
Property, 382.
"The three most general and important features of the law are that it is--
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1. Normative2. Institutionalized3. Coercive.
It is normative in that it serves, and is meant to serve, as a guide for human behavior. It is institutionalized in that its application and modification are to a large extent performed or regulated by institutions. And it is coercive in that obedience to it, and its application, are internally guaranteed, ultimately, by the use of force."
Raz, Joseph, The Concept of a Legal System. Clarendon Press. Oxford, 1970.
The following quotes are taken from T. 0. McWhorter, Res Publica. The Craig Press, Nutley: New Jersey, 1966.
An Athenian citizen does not neglect the state because he takes care of his own household; and even those of us who are engaged in business have a very fair idea of politics. We alone regard a man who takes no interest in public affairs, not as a harmless, but as a useless character. Pericles, Funeral Oration
... we must explain the nature of Justice, and this must be sought for in the nature of man. Cicero
. . . the less government we have, the better—the fewer laws, and the less confided power. The antidote to the abuse of formal Government, is, the influence of private character, the growth of the Individual; the reappearance of the principal to'supersede the proxy; the appearance of the wise man, of whom the existing government is, it must be owned, but a shabby imitation. Emerson. Essay on Politics
No worse foe than the despot hath a state. Under ihorn, first, can be no common laws. But one rules, keeping in his private hands. The Law. Euripides
The tolerance by the public of a ruler who governs on a basis of the ends sought justifying the means employed is more than an indicator of the advance of tyranny: it is a condoning of tyranny itself. Hobbes
ONTOLOGICAL STATUS OF LAWS OF LOGIC,PHYSICAL LAWS, AND MATHEMATICAL LAW
LEGAL PARADIGMS
Nature of Paradigm; Has there been a paradigmatic revolution in jurisprudence?
Kuhn--They are universally recognized scientific achievements, that for a time provide model problems and solutions to a community of practitioners.' Kuhn's use of the term is loose. Sometimes it means a particular theory of narrow application; at other times, he uses it to signify
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a broader, general perspective on science and nature. In this latter sense, Foucault's term episteme seems to be more apt.
Foucault--the 'historical apriori' that 'in a given period, delimits in the totality of experience a field of knowledge, defines the mode of being of the objects that appear in that field, provides man's everyday perception with theoretical powers, and defines the conditions in which he can sustain a discourse about things that is recognized to be true.'
Varieties of Law; Source - Justification - Enforcement (Rational or Irrational, i.e.. Creation vs Chance) Source
A. Physical LawB. CustomC. Moral Law
Mass-energy patterns*Societal patterns+
D. Positive Law (Juridical)
Societal patterns & "Higher Principle"Juridical patterns & "Higher Principle"Enforcement Physical sanctionInformal, societal sanctionInformal, societal sanction & "Higher Sanction"Formal, official sanction of body politic & "Higher Sanction"ImpersonalPhenomenal ("horizontal") dimension onlyNumenal ("vertical") dimension as wellPersonal
COMMON DEFINING ELEMENTS ORDER VS. CHANCE+ COMPULSION/ JUSTIFICATION
Ultimately, the Creator, as can be shown by the implications of the Second Law of Thermodynamics (see Montgomery, "Is Man His Own God?", in his Christianity for the Tough-Minded). These patterns may themselves reflect ultimate truth; of the collective unconscious", Eliade's phenomenology of anthropological theory, and J. R. R. Tolkien's conception. Montgomery, Myth. Allegory and Gospel).
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cf. Jung's "archetypes religion, Levi-Strauss' of the fairy-tale (See Traian Stroiauovich, French Historical Method: The Annales Paradigm (Ithaca: Cornell University Press, 1976), p. 211;Michel Foucault, The Order of Things; An Archaeology of the Human Sciences (London: Tavistock, 1970), p. ix. The original edition is Les mots et les choses; une archeologie des sciences humaines (Paris: Gallimard, 1966); Michel Foucault, The Archaeology of Knowledge, trans. A. M. Sheridan Smith , … (New York: Harper and Row, 1972), pp. 138-39, 147. For an application closer to Foucault's own approach, see Karl M. Figlio, "The Metaphor of Organization: An Historiographical Perspective on the Bio-medical Sciences of the Early Nineteenth Century." History of Science 14 (1976): 17-53.
In Archaeology Foucault neglects the term "episteme" for "positivity" or "historical a priori." A "positivity" is the "rules" under which "a discursive practice may form groups of objects, enunciations, concepts, or theoretical choices." Positivities "form the precondition of what is later revealed and which later functions as an item of knowledge or an illusion, an accepted truth or an exposed error" (pp. 181-82). The episteme, however, returns apparently as a more inclusive term for the study of "positivities" in a certain period of time.
Thomas S. Kuhn, The Structure of Scientific Revolutions. 2d ed. (Chicago: University of Chicago Press, 1970); in "Second Thoughts on Paradigms" in The Structure of Scientific Theories, ed. Frederick Suppe (Urbana: University of Illinois Press, 1974), Kuhn substitutes "disciplinary matrix" and "exemplar" as designations of the broader and narrower meanings.
From an analytic standpoint a complete theory of legal system consists of the solutions to the following four problems:
1. The problem of existence: What are the criteria for the existence of a legal system? We distinguish between 'existing legal systems and those which have either ceased to exist (e.g. the Roman legal system) or never existed at all (e.g. Plato's proposed law for an ideal state). Furthermore, we say that the French legal system exists in France but not in Belgium, and that in Palestine there is now a different legal system from the one which was in force 30 years ago. One of the objects of the theory of legal system is to furnish criteria to determine the truth or falsity of such statements; these we shall call the 'existence criteria' of a legal system.
2. The problem of identity: (and the related problem of membership) What are the' criteria which determine the system to which a given law belongs? These are the criteria of membership, and from them can be derived the criteria of identity, answering the question: which laws form a given system?
3. The problem of structure: Is there a structure common to all legal systems, or to certain types of legal system? Are there any patterns of relations among laws belonging to the same system which recur in all legal systems, or which mark the difference between important types of system?
4. The problem of content; Are there any laws which in one form or another recur in all legal systems or in types of system? Is there any content common to all legal systems or determining important types of system?
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Problem of Individual Liberty : Law and Liberty
John of Salisbury expressed his view of liberty:
Liberty means judging everything freely in accordance with one's individual judgment, and does not hesitate to reprove what it sees opposed to good morals. Nothing but virtue is more splendid than liberty, if indeed liberty can ever properly be severed from virtue. For to all right-thinking men, it is clear that true liberty issues from no other source. Wherefore, since all agree that virtue is the highest good in life, and that it alone can strike off the heavy and hateful yoke of slavery, it has been the opinion of philosophers that men should die, if need arose, for the sake of virtue, which is the only reason for living. But virtue can never be fully attained without liberty, and the absence of liberty proves that virtue in its full perfection is wanting. . .
The practice of liberty is a notable thing and displeasing only to those who have the character of slaves. (The Policraticus. Book VII, Ch. XXV (trans. Dickinson).
Dante expressed much the same view of liberty in a political society:
Again, the human race is ordered best when it is most free. This will be manifest if we see what is the principle of freedom. It roust be understood that the first principle of freedom is freedom of will. which many have in their mouth, but few understand. (De Monarchia. Book T. Ch. XII (trans. Church).
The relationship of liberty to reason--Frederic Bastiat
In short, is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so?
Finally, is not liberty the restricting of the law only to its rational sphere of organizing the right of the individual to lawful self-defense; of punishing injustice? (The Law, p. 51.)
John Stuart Mill
. . .The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (Essay on Liberty, p. 212).
Mill further stated that in the "old times," by liberty was meant protection against the tyranny of political rulers. - p. 203.
Edmund Burke - liberty in terms of the rights of man:
If civil society be made for the advantage of man, all the advantages for which it is made become his right. It is an institution of beneficence; and law itself is only beneficence acting by rule. Men have a right to live by that rule, they have a right
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to do justice, as between their fellows, whether their fellows are in public function or ordinary occupation. They have a right to the fruits of their industry; and to the means of making their industry fruitful. They have a right to the acquisitions of their parents; to the nourishment and improvement of their offspring; to instructions in life and to consolation in death. Whatever each man can do separately, without trespassing upon others, he has a right to do for himself, and he has a right to a fair portion of all which society, with all its combinations of skill and force, can do in his favor. In this partnership all men have equal rights; but not to equal things. (Reflections on the Revolution in France, p. 207.)
Rousseau--
When a man renounces his liberty he renounces his essential manhood, his rights, and even his duty as a human being. There is no compensation possible for such complete renunciation. It is incompatible with man's nature, and to deprive him of his free will is to derrive his actions of all moral sanction. (The Social Contract, Oxford University Press, p. 248.)
Universal Declaration .of Human Rights
Preamble:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged, the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human' rights and fundamental freedoms,
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Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now therefore
The General Assembly proclaims
This Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Article.1--All human beings are born free and equal in dignity and rights. . . Article 2--Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex. . . Article 3—Everyone has the right to life, liberty and security of person. Article 4--No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5--NO one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment.
Article 6—Everyone has the right to recognition everywhere as a person before the law.
Article 7--A11 are equal before the law and are entitled without any discrimination to equal protection of the law. . .
Article 8 -- Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by law. Article 9 -- No one shall be subjected to arbitrary arrest, detention or exile. Article 10 -- Everyone is entitled in full equality to a fair and public hearing. , Article 11 -- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial. . . Article 12 -- No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor. . . Article 13 -- Everyone has the right to freedom of movement and residence within the borders of each state. Everyone has the right to leave any country, including his own, and to return to his country. Article 14 -- Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Article 15 -- Everyone has the right ot a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16 -- (1) Men and women of full age, without any limitations due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 17 -- Everyone
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has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property. Article 18 -- Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19 -- Everyone has the right to freedom of opinion and expression; . . . Article 20 -- Everyone has the right to freedom of peaceful assembly and association; no one may be compelled to belong to an association. Article 21 - Everyone has the right to take part in the government of his country. Article 22 -- Everyone, as a member of society, has the right to social security. . Article 23 -- Everyone has the right to work, to free choice of employment. . . to equal pay for equal work. . . to just and favourable remuneration insuring for himself and his family an existence worthy of human dignity. . .to form and to join trade unions for the protection of his interests. Article 24 -- Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25 -- Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family. . .and the right of security in the event of unemployment, sickness. . .Motherhood and childhood are entitled to special care and assistance. All children. . .in or out of wedlock, shall enjoy the same social protection.
Article 26 -- Everyone has the right to education. . .Elementary education shall be compulsory.
Article 27 -- Everyone has the right freely to participate in the cultural life of the community , to enjoy the arts. . .share in scientific advancement. . . Article 28 -- Everyone is entitled to a social and international order in which rights and freedoms set forth in this Declaration can be fully realized. Article 29 -- Everyone has duties of the community in which alone the free and full development of his personality is possible. ... Article 30 -- Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Morality. Law and Grace: Conflicting Paradigms of Law and Law and Freedom in a Permissive Society
(See especially J. N. D. Anderson, Morality. Law and Grace (Inter-Varsity Press, 1972; H. L. A. Hart, Law, Liberty and Morality (Oxford, 1963); and Law, Morality and The Bible (Inter-Varsity Press, 1979); note the 1981 Freedom and Faith at Center for Continuing Education, Notre Dame University, April 23-26, 1981.
A. Christian Moral Paradigm inseparable from Creator/Redeemer God revealed ultimately in Jesus of Nazareth.
B. Determinism (cf. Fatalism); see my essay on Determinism.
C. Six dimensions of debate between exponents of freedom of moral choice and those of determinism: (1) Physicist, (2) Psychologist, (3) Philosopher, (4) Theologian, (5) Socio-Biologist, (6) Geneticist (see pp. 12ff of Anderson above).
D. "Everything happens through immutable laws. . .everything is necessary."
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(Voltaire); vs. Freudian/Marxian irrationalism and the relationship between Physics, Psychology and Socio-Biology (see my syllabus. Historiography of Biological Theory).
E. Ash ariyya--i.e., Islamic orthodoxy maintains that man's actions are in fact created by God in both its initiative and production. Man's power of choice. . ."corresponds to the creature's power and choice, previously created in him, without his having the slightest effect on the action. He was only the locus or subject of the action" (D. B. MacDonald, Muslim Theology: Jurisprudence and Constitutional Theory (NY: Scribner's, 1903) p. 192.
F. Morality and Law in a Permissive Society
1. What is permitted? -- alternatives2. Who permits it? -- i.e.. Justification of permission3. Social Consequences of Permissiveness
G. Morality/Law in Muslim and Hindu Thought: Nature of Society (see my syllabus. The People of God: Israel, Kingdom, Church, World)
H. Morality/Law in Western Jurisprudence (see especially H. L. A. Hart, Law, Liberty and Morality (Oxford 1963). Critically compare with P. A. Devlin, The Enforcement of Morals (Oxford, 1965).
I. Individual and Society, i.e.. Nature of Person and Society as Structure and Alternative Structures (see Basil Mitchell, Law. Morality and Religion (Oxford 1967).
J. Problem of Tyranny and Injustice
1. Should tyranny be resisted? (Matt. 22; Rom. 13: 1-7; I Peter 2:13-17; 3:13-14; 4:16; Revelation; J. Ellul, Violence (NY: Seabury, 1970).
2. Definitive recent study on forms of aggression, from individual to national; Eugene Aroneanu, La Definition de L'Agression (Paris: Les Editions Internationales, 1958).
K. Can There Be A Just Revolution?: "Under constitutional law a revolution against a lawful
government must always, ex hypothesi be illegal, but it is interesting to note that there is a palpable difference when we turn to international law." (Anderson, ibid.. p. 91).
L. Naturalism/Secularism/Humanism and Human Rights: (See UN Declaration on Human Rights in this syllabus)
M. Revolution and Revelation (see esp. Rene Padilla, in Is Revolution Change? (Inter-Varsity Press, 1972); and my syllabus, Hegel/Marx and Liberation Theologies.
N. Morality/Law and Grace (Romans/Galatians) ". . .by grace. . ."
1. Possibility that Positive Law can outrage moral standards
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2. Moral malaise in our pluralistic society.3. Does morality need God?4. Does law need God?5. Does justice/mercy need God?6. Biblical Moral Paradigm vs. Utilitarianism and Subjectivistic Intuitionalism (i.e. rational
justification of irrationalism) . Our challenge is to declare and live in Him through whom 'grace and truth' was revealed in a living way: (a) Origin of Moral Living; (b) Motive for Moral Living; and (c) Power for Moral Living—Salvation is offered by Grace, through the Gospel, whereas salvation in non-Christian thought is a human achievement (egs. Buddhism. Liberation Theologies). Christ fulfilled the Law! (See Kittel and C. Brown on Nomos). "Christ is the end of the struggle for righteousness -by- the Law for everyone who believes in him." (Romans 10:4 - Phillips' translation)
BIBLIOGRAPHY
Friedrich, J. C. The Philosophy of Law in Historical Perspective. Chicago: The University of Chicago Press, 1973.
Hans, K. Law Philosophy: What is Justice? Berkeley: University of California Press, 1957.Kroll, J. H. Law Athens Antiquities. Cambridge: Harvard University Press, 1972.Levi, H. F. An Introduction to Legal Reasoning. Chicago: University of Chicago Press, 1949.Maine, S. H. Ancient Law. Boston: Beacon Press, 1963.Nice, W. R. Treasure of Law. Philosophical Library: New Yor, 1964.Unger. M. R. Law in Modern Society. New York: The Free Press (Collier MacMillan Publishers,
1976).Wannington, H. E. Cicero XVI de re Publica de Legibus. Harvard University Press, 1971.d', Entreves, P. A. Natural Law. London: Hulchinson University Library, 1969.International Philosophical Quarterly. New York: Fordham University. Cicero, The Laws, Bk. I, Ch. vi, (trans. Keyes), NY: G. P. Putnam's Sons, 1928, pp. 317, 319.
. . .now let us investigate the origins of justice.
Well, then, the most learned men have determined to begin with Law, and it would seem that they are right, if, according to their definition. Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite. This reason, when firmly fixed and fully developed in the human mind, is Law. And so they believe that Law is intelligence, whose natural function is to command right conduct and forbid wrongdoing. They think that this quality has derived its name in Greek from the idea of granting to every man his own, and in our language I believe it has been named from the idea of choosing. For as they have attributed the idea of fairness to the word law, so we have given it that of selection, though both ideas properly belong to Law. Now if this is correct, as I think it to be in general, then the origin of Justice is to be found in Law, for Law is a natural force; it is the mind and reason of intelligent man, the standard by which Justice and Injustice are measured.
St. Thomas Aquinas, Summa Theologica. Q. 94, Art. 4, (Ed. Pegis) NY: Random House, 1945, Vol. II, p. 784.
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The natural law belongs to those things to which a man is inclined naturally; and among these it is proper to man to be inclined to act according to reason. Now it belongs to the reason to proceed from what is common to what is proper, as is stated in Physics i.
The first principle in the practical reason is the one founded on the nature of good, viz., that good is that which all things seek after. Hence this is the first precept of law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based upon this; so that all the things which the practical reason apprehends as man's good belong to the precepts of the natural law under the form of things to be done or avoided, (op. cit. p. 774.)
Cicero, The Republic. Book III, Ch. xxii (trans. Keyes), NY: G. P. Putnam's Sons, 1928, p. 211.
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder of interpreter of it. And there will not be different laws at Rome and at Athens or different laws now and in the future, but one eternal and unchangeable law which will be valid for all nations and all times and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.
Grotius defined natural law as follows: (Hugo Grot jus, De Jure Belli ac Pads Kelsey's trans.). Book I, Ch. i. Sec. x.
The law of nature is a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that in consequence, such an act is either forbidden or enjoined by the author of nature. God.
Cicero, The Laws. p. 319.
But since our whole discussion has to do with the reasoning of the populace, it will sometimes be necessary to speak in the popular manner, and give the name of the law to that which in written form decrees whatever it wishes, either by command or prohibition. For such is the crowd's definition of law.
Augustine defined justice in these words:
"Justice is that virtue which gives everyone his due." (The City of God. Book XIX, Ch 21, Great Books of the Western World. Encyclopedia Britannica. Inc., Vol. 18, p. 534.
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Frederic Bastiat observed that law can be made into an instrument of "plunder." He asked, "But how can this legal plunder be identified?" (The Law. p. 21.)
Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot: do without-committing a crime.
Then abolish this law without delay, for it is not only an evil itself, but also it is a fertile source for further evils because it invites reprisals. If such a law-which may be an isolated case--is not abolished immediately, it will spread, multiply, and develop into a system. (The Law (trans. Dean Russell), The Foundation for Economic Freedom, Inc., Irvington-on-Hudson, NY, p. 21).
Bastiat spoke of the evils of the conversion of the law into an instrument of plunder in the following manner:
In the first place, it erases from everyone's conscience the distinction between justice and injustice.
No society can exist unless the laws are respected to a certain degree. The safest way to make laws respected is to make them respectable. When law and morality contradict each other, the citizen has the cruel alternative of either .losing his moral sense or losing his respect for- the law. The two evils are of equal consequence and it would be difficult for a person to choose between them. (The Law, p. 21)
"The collective organization of the individual right to lawful defense."p. 6 (Definition of the law)The idea of a government of law and not of men is as old as men have experienced tyranny. As was stated by Aristotle, "It is better that all things be regulated by law than left to be decided by judges." (Thomas Aquinas, Sunma Theologica. 0. 95, Art. 1, op. cit. Vol. II, p. 783.
"Law is what the courts say it is!" 0. W. Holmes"Do we then overthrow the law by this faith? By no means, On the contrary, we uphold the law." Paul (Romans 3:31--read Romans and Galatians on The Law)
WHAT ABOUT INTERNATIONAL LAW 'If law is what the courts say it is'?
1. The Four Horseman:a. A Counterfeit Sovereign--The Secular Conquerorb. War and Humors of Warc. Terrorists/Terrorism/International Chaos and Disorderd. Poverty and Famine
2. Princes, Peoples and Peace:a. Policies, Presuppositions and Peaceb. National and International Loyaltiesc. Needed--Cosmopolitan Christians vs. Proventialistic Policies
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3. Citizens of Heaven Living in The Present World: Citizens of Two Worldsa. Lawb. Orderc. Power and Justice d. Reconciliation .of The Eagle and The Dove
4. Swords into Pruning Hooks:a. Department of Defenseb. Theories of Warc. Pacificism, Aggression and Naivetyd. Rationality/Irrationalism
5. Morality. Democracy, Liberal-Humanism and Myth of Neutrality:a. Crisis of Legitimacy (Justification)b. Diplomacy and Democracy
6. Origin and Justification of Power:
a. Paradigms, Purposes and Policiesb. Paradigms and Models of Power Holders
(1. The Caesar (5. The Puritan(2. The Exorcist (6. The Hermit(3. The Policeman (7. Crisis in Came lot (Bi-centennial)(4. The Senator (8. Challenge of the 80's
7. The Christian Calling; (see My syllabus--Sin and Salvation)
"Reconciliation must take place in two dimensions: vertical (man to God) and horizontal (man to man). The vertical (conversion) is essential, but the horizontal is not optional. Witnessing to the truth of Christ's teaching by expressing it in verbal form (evangelism, apologetics) is necessary if it is to be believed; practicing His teaching is necessary if we are to be believed." (H. 0. J. Brown. Christianity and The Class Struggle. Grand Rapids: Zondervan, 1971 , p. 214.
a. Christian Eristics and Foreign Policy (see syllabus Christian Eristics: Historiography of Christian Apologetics)
b. "Perhaps we cannot eliminate starvation, terror and war. But as Christians we can be in the vanguard of efforts to work to reduce them. And as Christian citizens of America, in a world of need and danger, that is truly a task worthy of our calling." (R. Kirkemo, Between The Eagle and The Dove. Downers Grove: Inter-Varsity Press, 1976, p. 214.
8. Paradigms and Norms Among The Nations; International Law, International Norms and National Policy (see my syllabus Seminar; Historiography of Theories of Law. especially the section—International Law—Grotius and Beyond; Vanderbilt Journal of Trans-National Law: and Prolegomena: From Corpus Christianum to Rising Nation-States. (American Journal of International Law)
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a. Origins of Western International Theory: Patterns of World History and God's Purpose, i.e.. Providence.
b. Norms in International Politics: National 'justifications' of action are often simply restatements of ideological beliefs, distortions of reality, mistruths, or out-and-out nonsense. Reinhold Niebuhr declared over a quarter century ago that as the state can never consider self-sacrifice, its attempts at morality are overwhelmed in ambiguity. The prospects for the '80's' have not advanced far beyond this insight.
c. Historically, ideas of international norms has proceeded primarily in terms of the category of "Just War.' This was the concept employed by Cicero, Augustine, Aquinas and Grotius, and also 20th century theories i.e., restatements of International Norms.
d. Classical Graeco-Roman Paradigms of International Norms.e. Classical Christian Paradigm of International Norms.f. Two pivotal classical Christian formulations of International norms: (1. Augustine and (2.
Grotius. The former became a standard of political realism; the latter stood at the beginning of the modern period of politics by the Nation-State. His task was to summarize a millennium of thought and to try to make normative theory relevant to the new international politics.
9. Both Aristotle's Politics and Plato's Republic posited a close relationship between politics and ethics. Classical Greek political reflection was part of moral philosophy and this in turn of religion and philosophy in general.
a. Aristotle's Politics was a continuation and elaboration of his Ethics
b. Plato's Republic was a discourse on justice in the city-state and an attempt to describe the just polls.
c. The Greeks focused attention on the polls, where human virtue was sought by a right ordering of relationships. The individual was perceived as part of the many; indeed, the person was understood only as an aspect of the association. Personal worth and meaning were thus a subspecies of existence in the polity. A good community gave rise to and was made up of good citizens. Thus community determined not only economics or politics but every element of human reality-aesthetic, religious, psychic, etc.. No disjunction was perceived between family and polls: the latter was a larger, the former a smaller form of the other. (See Coleman Phihipson. The International Law and Custom of Ancient Greece and Rome (2 vols.: London: MacMillan, 1911; H. C. Baldry, The Unity of Mankind in Greek Thought (Cambridge: The University Press, 1965).
d. Whatever the ultimate cause, Greek thought was unaware of Inter-polis relations and, like much of ancient thought, hostile to the foreigner. Categories were generally domestic rather than international, and throughout the ancient world there was an antagonism toward outsiders and strangers (see O.T.—Ex. 12; Ps. 137; Isa. 13; Hos. 10; 13; Nahum 3; note that Abraham was a ger, i.e., a foreigner and the place of the goy-goyim in God's purpose; finally the commission to preach the gospel to all the nations—Matt. 28:19ff. Ultimate mankind is divided into two groups—Believers and Unbelievers. The ultimate cause of alienation is sin, not naturalistic 'Class Struggle," 'ala' Hegel/Marx).
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e. Chauvinist Vieios: egs. Hebrews, Hellene, Barbarian.
f. Until very late (possibly 5th century B.C.), there was no basis in classical thought for any kind of "Internationalism," let alone for concepts of International responsibilities or transnational norms. (See Gen. l;26f., and God's ultimate promise, purpose and presence in order to redeem the fallen universe (Isa. 60-66; Rom. 8; and Rev. 21-22. In Christ there is no Greek, barbarian, male or female. . .)
g. Greek mind, intelligible speech, reason, and barbaroi who lacked ho logos.
h. Interstate Politics--Exclusivist theory of the polis justified an international politics of raison d'etat. The state and its needs were ultimate. (See Thucydides, The Peloponnesian War, ed/ introd. by J. H. Finley (NY; Modern Library 1951) III, 56; V, 105, 107.
i. Biblical paradigm of International Responsibility grounded in Genesis 1-12. Creation is. basis of unity of mankind (compare the pantheistic mythology of the Iliad and Odyssey and Stoic natural theology—see Acts 17:16ff.; See Baldry above for the classical suggestions of human unity: (1) Geographic, .(2) Biological, esp. Thucydides, Antiphon, and Hippocrates.
j. The Cynic's ideal of sophos, i.e.. Wisdom—which stood above laws and regulations. k. Alexandrian Paradigmatic Revolutions: Contradiction between Polls and Practice. Antagonism
based in exclusivistic Polis theory had to give way to alliances, i.e., rejection of isolationism of exclusivity. By 350 B.C., federalism was common arrangement among the Hellenes. United and inclusivist Greece grew not from inside but outside the polis paradigm through the armies of Philip and Alexander of Macedon.
l. Unity of Hellas - koine culture - the enlarged world. A person needed to know only koine to
travel from one of the Oikoumene to the other.
m. Stoic /Epicurean natural law paradigms; universal individualism (see Lactanfius Divine Institutes, esp. Ill, 17, 42. 'There is no such thing as human society; each individual looks out for himself; there is no one who feels affection for another, except for his own benefit." Contra traditional political presuppositions, e.g. patriotism- and generated moral atomism similar to our own age.
n. Nature was rationally/morally ordered. Man as the rational being could participate in and come to understand the very essence of reality. (See Sabine's edition of Cicero's On The Commonwealth (Columbus; Ohio State University Press, 1929).
o. International Theory/Norms of Cicero (G. H. Sabine, History of Political Thought, chp. 9. Eternal Natural Law is Cicero's basis for/of International Norms (De re publica. Ill, 13). The "law of human nature" that unites all people is reasoned justice. Natural law, justice, and the brotherhood of mankind built thereon are universal and non-exclusive. No chauvinism or nationalism is to intervene. .Polls and citizenship; Norms and Nations.
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p. Cicero's Natural Law Theory of 'Just War,' as instrument of conflict resolution. Cicero went so far as to set forth ideas of jus ad be Hum (justice vs. undertaking war) and jus in be Ho (justice in warfare)--From Cicero to Augustine
10. Augustine's Realism and the Origins of Western International Norms:
a. Paradoxical Paradigms--Exclusion/ and Political Escapism (Pacifists and Militants).
b. Judaic Paradigm--major political issue was how the Jewish-Christians should deal with the Roman Empire, egs. Jewish Zealots demanded overthrow of Roman rule by violence. In general Jews accommodated their political situation.
c. Christianity spread under the beneficence of Roman rule (see Coleman's Church and Roman Law; and esp. M. D. J. Derrett, Law in the N.T., 1970). The Pax Romana afforded Christians protection until and after the great persecutions. See Frend' classic work on Persecution; and Roland Bainton's, Christian Attitudes Toward War and Peace (NY; Abingdon Press, 1960).
d. Paul's political thought (Romans 13:1-7) compared with the Revelation, esp. chaps. 12 and 17:6, see Cullman's The State in the N.T. (NY: Scribners, 1956).
e No mention of International Politics and Ethics in the N.T.; Jesus and His Kingdom (John 18:36; Acts 1:6-8).
f. Gospels on Warfare - Matt.5:39, 41, 43; 26:52; 24: 6-8; Luke 21:9; 19: 43-44; Mk. 13:7.
g. Is Romans 13 the biblical basis of State as Regulative and coercive? h. The military, the State and Christian Existence, Participation (or non) conscription, police
force, military as a quasi-religious institution, i.e., often entailed idolatry.
i. Christian anti-war tradition in the pre-Constantinian Era -- see Tertullian, De corona militia, II; and his De idolatria XIX; also C. J. Cadoux, The Early Christian Attitude To War (London. 1919), pp. 151-160.
j. Pacificism from Tertullian to Origen - Ignatius' Epistle to the Ephesians 13: 2; Eusebius' Praeparatio evangelica 106-llla; also see V, 5, 3ff. where Eusebius claims that a whole legion was Christian; Origen's Contra eel sum II. 30; Lactantius use of ‘10 Commands’ and prohibition of killing Divine Institutes VI. 20; VII, 20; Acts 10, 14.
k. Natural Law, International Theory and Romans 1-2. The Gospel and final commission as instrument of criticism of political policy according to suprepolitical norms.
l. Constantinian Transition in Christian Thought: From Pontifex Maximus, i.e., chief priest of the Pagan State Religion. 314 A.D. Synod of Aries; Athanasius set forth the thesis that End justifies the Means. By ca. 386 Ambrose described war as functioning to preserve and insure the domestic commonweal. He copies Cicero's De officus. thus setting forth the doctrine of a
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'just war.' Triumph - Christianity or Constantine? The 'Edict of Milan' gave Christians an ascendant status in the empire. In 410 A.D. Alaric sacked the imperial city itself, signaling the ultimate collapse of The Roman Empire. Augustine's response was directed to both Christians and Pagans.
m. Civitas Dei and Civitas Terrena- Augustine maintained that the basic problem sin is pride, exaltation and love of self, rather than God. Augustine saw this reflected in society and politics and on it he built his 'Two Cities' theory. (See his Euchiridion XXIV, and City of God, XIII, 14.) Fallen man seeks domination over others. Central to Augustine's theory of Society and Politics is the idea of the Two Cities. XIV, 2.8, XIX, 21 (civitas Dei and civitas Terrena) the Civitas Dei is a genuine commonwealth. See H. R. Deane's The Political and Social Ideas of St. Augustine (NY Columbia University Press, 1963, esp. pp. 120ff; and T. M. Garrett, "Augustine and the Nature of Society," The New Scholasticism XXX. (Jan, 1956).
n. Three Associations: (1) Family, (2) City-State, and (3) World. In the third circle of human society, nations are the actors (see City XIX, 7, 8) For a millennium the universality of the Roman Empire was mandatory in human thought, along with the Catholicity of the Roman Church, as Rome sought to solve the problems of conflict and war by imposing Pax Romana and a universal culture and language." Yet, Rome's peace had been built by arms and violence. Thus International Politics has been institutionalized and internationalized.
o. Augustine's Political Realism thus avoided the two extremes of viewing the Roman state as an instrument of the demonic as had early Christians, or of equating Roman success with that of the Kingdom of God. (See City XV, 5, 6) - whose Peace and whose Victory? Are the key questions of International Politics.
p. Augustine's Be Hum Justum (see Gustave Combes, La Doctrine Politique de Saint August. (Paris: Librairie Plon, 1927), esp. pp. 261-65.
(1) Foundations for his Theory: Images of Peace, Order and Justice (City, XIX, 13). Peace is thus achieved when people agree on the ordering of their lives and affairs. But what is order? "Order is the distribution which allots things equal and unequal, each to its own place." Order is the static side of justice. Justice gives to each his due; order grants each his appropriate place with his due. Place is thus based on an agreement as to what justice is. (2) Attributes of a Just War. (3) Augustine's reasons why states go to war: (a) "les causes politiques, (b) les causes economiques, and (c) les causes morales" (Combes, ibid.. p. 278). (4) The Decision-Maker; who determines when the national interest is at stake? Augustine relies on Romans 13 for his general justification.
11. Universalism and National Sovereignty:
a. International politics as a Unified Society, a Corpus Christianum.b. From Augustine’s Two Cities to Aauinas’ Summa Theologica. Thomas’ image was a pacific
Corpus Christianum rather than a world of political competition. (See B. de Solanges, The Theology of the Just War (Paris: Desclee de Brouwer, 1946); Summa II, II, question 40; II a II ae, question 40).
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c. From Corpus Christianum to the Rising Nation-State (cf. coming of nationalism); see Ernest Nys for the Classics of International Law (Washington, B.C., 1917, reprinted by Oceana Press, NY, 1964).
d. Be Hum 1 us turn became completely entangled in legality, would be left incapable of talking of Jus ad be 1 lum at all. The central error was equating lex with jus, legality with right or justice. This led directly to the building of International Law on a be Hum justum base--by H. Grotius. This move constituted a legal paradigmatic revolution. Positive law inevitably represents the ruling powers' conception of the Status Quo. Thus the be Hum justum theory became a moral legitimation of existing international arrangement. The Status Quo became the standard of justice. Hegel's panentheism is the total challenge to all forms of conservatism. Darwin's evolutionary theory finished the shift in paradigms.
12. Paradigmatic Revolution in International Norms: Hugo Grotius' De lure. 1625, is the father of International Law. (See Vanderbilt Journal of Trans-National Law. Vol. 5, No. 2).
a. Grotius set forth norms of international conduct based in a single standard of transcendent 'justice' or 'right.' He shifts this transcendent justice from the personal rational creator/redeemer Judaeo-, Christian God to natural law, i.e., eternal rational moral structures. (See John Wild, Plato's Modern Enemies and the Theory of Natural Law (Chicago, University of Chicago Press, 1953).
b. Grotius separated the sphere of norms from the sphere of law and centered his theory upon the former. In fact, he completely rejected the use of 'positive law" as basis for his De lure. Parochial domestic standards, i.e., human law, had to be disregarded (De jure. Prolegomena. paragraphs 26 and 30).
c. By the term 'law of nations' Grotius meant regularity in national practices. His fundamental presupposition was that nations in fact operated according to common standards of action.
d. Grotius asserted that his work was written on behalf of justice and not a treatise on law or war. Grotius' normative standards in international politics was 'the law of nature' (see De jure Bk I, Ch I, sect IX, and paragraphy X.)
e. Grotius held the 'law of nature' would be known and valid and applicable even if "there is no God, or [if] the affairs of men are of no concern to him." (Ibid.. section X, para. 7)
f. Conscience and expediency were the two operative touchstones for this normative system. Man's nature craves for sociability (a’ la' Aristotle) and this craving is the mother of universal norms. For both individuals and state note the significance of Grotius' expressed admiration for both Galileo and Hobbes' works. "From the first beginning of his philosophy it was his great ambition to create a theory of the body politic equal to the Galilean theory of physical bodies, equal in clarity in scientific method, and in certainty. In his introduction to his De jure belli et pacts Hugo Grotius expressed his conviction. According to him it is no means impossible to find a "mathematics of politics." (E. Cassirer, "Wahrheitsbegriff und
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Wahrheitsproblem bei Galileo," Scientia (Milano. Oct. 1937, p. 188); and his The Myth of the State, esp. pp. 210ff.).
g. Expediency under girds the natural ethic. The law of nature binds the universal association together. Expediency, therefore, dictates that alliances and international agreements be based implicitly on normative standards of honor, right, and justice (Prolegomena, para. 18, 22, 23, 27).
h. Paradigmatic Revolution regarding the nature of war. Aquinas' question 'whether it is ever lawful to wage war' is reversed by Grotius' affirmation that "all points are in In war's favor" because war is aimed at the preservation of life and things useful to life (Book I, ch II. sect. 1, para. 4; also 5; Bk I, Ch. II, sect. para 2; Bk I, Ch. II, sect. III-IV). Pacifists like Erasmus claimed war immoral; naturalists like Machiavelli, held that raison d' etat was an ethic unto itself. Both are wrong, asserts Grotius, for war is essentially an enforcement of rights. Grotius - contra Holy Wars of The Crusaders (see De juri, Bk II, Ch XXIII follows categories of Aristotle's Nichomachean Ethics.) The idea of an independent nation-state was foreign to all medieval understanding. Christendom was a supra national union of which kingdoms were dependent numbers. Grotius sought to mediate the extremes of International Society and sovereignty (see De juri. Bk I, Ch. IV, sect. 1, para 3; Bk I, Ch IV, sect. XI). Grotius’ consent theory fore shadowed Locke and Montesquieu Grotius had a voluntarist view of International Society which held that its standards were established by roan and not by some higher force, i.e.. God. We are now headed towards the Linguistic/Cultural Relativism thesis of the 19th century Social Sciences. (See my syllabi! Historiography of Theories of Law and Historiography of Philosophical Ethics: Demise of Christian Moral Paradigm).
i. 'Grotius' contradictory views of Justified War (Bk II, Ch IV, sect. VI, Bk III, Ch IV, sect. VIII, para. 1, 3). For ca. 400 years, before its American espousal, Grotius1 theory pre-shadowed the contours of contemporary norms of warfare. When the sovereign state proclaims a just --jus ad bellum. everything is lawful which is necessary to attain the wars end.. "We must strive with all our strength to win," when the cause is just.
j. Juridical view of war—as "the right to use force in obtaining one's own" (Bk I, Ch I, sect. X, para 7; and Bk II, Ch. XVII, Sect. 1; Bk II, Chs XX-XXI passim.)
k. Grotius' near-espousal of a Revolutionary Paradigm (Bk III, Ch XI, sect. VIII) National sovereignty and International Society, egs. OPEC, Iran, Arab-Israeli war, Russia-Poland-Warsaw Pack, etc. Afghanistan). 1. Posir.ivistic Paradigm--At least from Grotius’ legal theory forward, the medieval Christian law of nations was in process of replacement by a naturalistic-humanistic-secularistic paradigm. In place of biblical, religious, ethical, or other philosophical bases, law was now seen to rest on specific and secular law creating processes posited by The State. Near at hand was the immanent principle of the Sociology of Law, i.e., cultural relativism of things moral and legal. In the 18th century, C. Wolff (1679-1754) and E. Vattel (1714-1767, Switzerland) developed a distinction between natural and positive law, the latter stemming solely from a human law maker (Christian Wolff's classic, lus Gentium Methodo Scientifico Pertractatum (London: Clarendon Press, 1934).
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l. Vattel's. The Law of Nations (NY: Oceana Press, reprinted), 1964. In spite of the 18th century paradigm shifts in the physical sciences (Laws of nature) International Law and Ethics were simply disregarded. Vattel insisted that they could not treat the matter of justice since there was no supranational court to adjudicate disagreements over right.
m. The Quintessence of Positive Law and absolutist nation state norms was set forth in 1788 by George F. von Martens, professor public law at the university of Gottingen (cf. Continental Nationalism). His classic work—A Coropendum of the Law of Nations Founded on Treatise and Customs of the Modern Nations of Europe (trans. by W. Cobbett and listed treatises up to June 1802; pub. June 1802, London: Cobbett and Morgan). This in-dispensible work clearly indicates the paradigmatic revolution which had occurred over the century and a half since Grotius.
Marten's positivism is the unambiguous statement that the basis for the rights and obligations that comprise the law of nations is nothing more or less than "the mutual will of the nations concerned" (Bk II, Chp 1, sectioni). But there is nowhere the suggestion that any extra-supra- or transnational agency, tradition, or norm can provide international law. Martens allows divine and natural law as a possibility, but since it is not specifiable, it has no operative significance (Bk II, 1, section 2, part 5, also parts 1-4). Classical positivism is thus a neat and logical system. But its exclusive statist concerns remain the central point of attack from more humanistic theories. The positivist order is one of power.
n. Positivist Law of War—Power-Pluralistic Sovereigns--Conflict Resolution. The positivist fundamental ius in bello is like that of politics—necessity of state. For the positivist, "war is that state, in which men constantly exercise acts of indeterminate violence against each other" (Martens', Bk VIII). The overriding positivist principles are: (1) circumstances alone determine proper means; (2) " war gives a nation an unlimited right of exercising violence, against the enemy" (Bk III, Chp. Ill, section 1 (Constitutional Positivism)
o. The Unequal American Yoke: Constitutional Positivism and Liberal Democracy (see American Constitution and Bill of Rights) The United States lacks any major ideological divisions and has thus become a singularly legalistic society. Legalism is the belief that normative guidelines can be translated into rules of behavior and that correct social behavior is entailed in the keeping of such rules. Where ideologies clash, law is seen as an expression of certain ideological preferences. But where there is ideological "monotony," law may be viewed as normative in itself and without the possibility of serious alternative. But the two basic approaches to International Law, the Naturalist and the Positivist are contradictory and cannot be held as rational correlates. While Positivism lacks legitimization. Naturalism persists in its profound influence in the American constitution. American sovereignty is in radical tension with International norms. Positivist law reveals the centrality it grants to necessity of State or as it is called in law of warfare, "military necessity." Nothing is a priori excluded. Positivism prohibits private crimes (egs. soldiers, presidents, et. al.). If performed by an agent of the state, literally any practice is allowed (cf. constitutional crisis--Nixon-Watergate, CIA, FBI, etc.) by the 19th century; International Law was reduced to proposing limitations on the modes of war's conduct. Jus in bello in positivist form became central (Law, Nominalism, Morals, War).
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p. Human Rights Movements and Post World War II Developments. (Note United Nations Universal Rights Declaration --see my syllabus. Historiography of Theories of Law) Lothar Kotzsch, The Concept of War in Contemporary History and International Law (Geneva: Librairie E. Droz, 1956).
q. American Just-War Tradition and International Crises: (See W. J. Nagle (ed.) Morality and Modern Warfare (Baltimore; Helican Press, 1960; John Ford, "Morality of Obliteration Bombing," Theological Studies, V, 3 (Sept. 1944); John Courtney Murray, Morality and Modern War (NY: Council on Religion and International Affairs, 1959; Osgood and Tucker, Force. Order, and Justice (Baltimore: Johns Hopkins Press, 1967); P. Ramsey's War and the Christian Conscience (Durham, W.C.: Duke University Press, 1961); and his The Just War (NY: Scribners, 1968); all of Reinhold Niebuhr's work and especially Paul Tillich's, Love and Justice.) Both the 'liberals' who insist on a nonviolent solution to every conflict, and the 'realists,' who, while defining politics as power, intimate that politics is inherently amoral or immoral are in error according to the Biblical Paradigm.
r. Nonviolence and the Origins of Totalitarianism (see H. Arendt. Totalitarianism (Chicago: University of Chicago Press, 1971 printing) and Hans Morgenthau's Politics in the 20th Century (Chicago. 1971). Ultimate questions: (1) Is a theory of Just-War feasible for the nuclear age? (2) Limited war and deterrence? (3) Jus Ad 'Weaponry' in place of Jus Ad Be Hum? (4) International norms? Nature of man and society? (5) Problem of Ends and Means? (6) Radical Change, Status Quo and Static Natural Law? (7) Nature of Agression? (Julius Stone, Agression and World Order (Berkeley: University of California Press, 1958; Eugene Aroneau, La Definition de l’agression (Paris: Les Editions Internationales, 1958); (8) Noncombatant Immunity and Innocence? (9) National Security and Secrecy (CIA, FBI): (10) International Crises, . International Policy and the Christian paradigm?
13. Ultimate Contributions of Graeco/Roman Thought was overcoming the parochialism of the polis and positing the International arena. The positing of an International Community assumes possibility of unity and harmony. (Note significance of Kuhn's Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1970 ed.)
a. Six landmarks characterize the contemporary situation:
1. World leadership has come to reside in new hands, those of the United States and the Union of Soviet Socialist Republics and increasingly in others as well. Formerly, Britain and France had developed theories and doctrines that took account of their great roles, and the United States and Russia traditionally thought in moralistic terms. Now theories of interest and purpose, not to mention legitimate action, must be developed by the new superpowers. This is not easy since both states have ideologies which deny the place of foreign (self) interests and domestic pressure in their international policy. For example, Americans are taught to believe that the U.S. has obligations and responsibilities, not interests.
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2. Politics and national actions are globalized. Technology and modern arrangements, whether in communications, armaments, economics, finance, or politics, have made nations interdependent and have intertwined many aspects of life.
3. International politics today has a large ideological component which is intertwined with the global aspirations and interests of the superpowers. Often a world-wide zero-sum game appears to exist when a remote area of the world is involved in superpower conflict.
4. The atomic age has created the danger of annihilation, but also the possibility of deterrence of major war. Conflict, at least between the major powers, has thus often shifted to lower levels.
5. Revolutions have disordered and reordered many areas and made them open to penetration by outside forces.
6. Competing nation-states remain central in world politics. But increasingly actors such as multi-national corporations bid for transnational power and challenge the nation-state.
b. Conflicts and National Interests include:
1. "Self preservation. . . .is the first duty of a nation" (Alexander Hamilton). Others speak of security. But one can ask what is preserved and what is Secured? Is it territory, people, culture, standard of living, or something else? It all depends on one's values. For seeking one form of self-preservation, Vichy France was condemned by General De Gaulle, who had a different view of national security. Hitler's Germany surrendered first security and then self-preservation for "higher" goals.
2. Power is not a substantive thing. It must be defined in terms of arms, economics, and so forth. West Germany and India, for example, decided for various reasons not to maximize certain forms of power while maximizing others.
3. Wealth is regularly sacrificed in wars and the building of armaments in order to gain other values and to increase wealth. Wealth may also be variously defined as personal or communal, economic or cultural, or in terms of specific goods and services, and so forth.
4. To a greater or lesser degree, states desire to be known as just and thus to gain affection and deference. But these are very slippery commodities indeed, since they are dependent on others' judgments. Strangely, the United States, which has been particularly concerned with "being loved," seems unable to grasp the fact that affection is an attitude of the lover and is not always directly related to what the loved one does.
c. Peace and War in Our Global Village (see Raymond Aron, Peace and War (Garden City: Doubleday, 1966); Richard Falk, A Global Approach to National Policy (Cambridge: Harvard University Press, 1975). R. B. Farrell, Approaches to Comparative and International Politics (Evanston: Northwestern University Press, 1966); Barrington Moore, Jr. In justice: The Social Bases of Obedience and Revolt (NY: Pantheon, 1978); John Rawls, A Theory of Justice (Cambridge: Harvard University Press), 1971.
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14. Till He Comes; Possibility of A More Just World System (see syllabus, Consummation of Creation: especially the section Eschatology, Ethics and Procedural Norms and International Policy) For critique of both Naturalism and Positivism by Christian Paradigm, see Taylor, The Christian Philosophy of Law, Politics and The State (Craig Press); and his Reformation and Revolution; for full data, bibliography, etc., see my Historiography of Economic and Political Theories.
Bring everything and thought into His Lordship. Because every inch of the universe, even the fallen universe, is God's. Christ's death and resurrection created the Church to tell every man that Christ is Lord of Life and Death! Till we all have faces! His for a more just world.
The ultimate issue is the relationship of 'natural law', laws of nature -physics - chemistry, etc., and the problem of a Christian view of Society. What does it mean to exist in the world as a Christian? 'Law' always entails boundaries for action. But the issue is 'whose law'--God's or man's, i.e.. Sociology of Law?
NATURAL LAW BIBLIOGRAPHY
Dslhaye, P. Permanence du droit Naturel (Louvain, ND).Demmer, K. lus Caritatis: Zur Christologischen Grundeegung der Augustinischen
Naturrechtlehre (Rome: 1961).Ellul, J. Le fondement Theologique dudroit (Neuchatel-Paris, 1946).Fuchs,J. 'Naturrecht und positives Recht' Stuninen der Zeit 163 (1958): 130-41.______. Natural Law (NY: Sheed and Ward, E.T., 1965).Funk, J. Primat des Naturrechts Die Transzendenz des Naturrechts gegenuber dem positiven
Recht (Modling bei Wien, 1952).Lackmann, M. Vom Geheimns der Schopfung. Die Geschichte der Exegese von Rom 1, 18-23
und Act a 14, 15-17; 17, 22-9 vomzweiten Jahrhundert bis zum Beginn der Orthodoxie (Stuttgart. 1952).
Sohngen, G. 'Naturliche Theologie und Heilsgeschichte.' Antwort an E. Brunner Catholica. 4 (1935): 97-114.
Strauss, J. D. Theology of Promise, especially section analyzing Acts 17 for Stoic view of Natural Law and Theology.
Wu, J. C. "Christianity, The Natural Law and the Common Law." American Benedictine Review 6 (1955): 137-47.
NATURAL LAW AS A LEGAL PARADIGM
I. Two fundamental presuppositions of the Christian paradigm are: A. Creator God as absolute origin of nature (creation); and B. Redeemer God purposeful--providence as absolute source of the Consummation of Creation. (See my syllabi Seminar: God--Creator/Redeemer; Consummation of Creation; Creation and Covenant). Origin and Justification of Moral Judgments:
1. What is meant by the term law?
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2. How/why is it so generally misunderstood?
a. "By natural law, or moral law, I mean: a universal pattern of action, applicable to all men everywhere, required by human nature itself for its completion", John Wild, Plato; Modern Enemies and the Theory of-Natural Law (Chicago: University of Chicago Press, 1953), p. 64; also: Leo Strauss, Natural Right and History (Chicago: University of Chicago ? ^Press, 1954).
b. What are the Ontological and Epistemological Presuppositions of the theory of natural Law?:
1. Man qua incarnate subject (See my syllabus--Imago Dei: Man Incarnate Subject) is as universal as man.
2. Human nature (even fallen/sinful) is an ordered set of traits possessed by all men (Cf..Contra Linguistic/Cultural Relativism/ Subjectivism/and Positivism--see my syllabus--Historiography of Theories of Language).
c. Values and Disvalues are facts of same kind (see my syllabus--Historiography of Philosophical Ethics: Tracing the Demise of Christian Moral Paradigm).
d. Values inseparable from facts. If there is no connection between the two realms, how is this factual link to be explained? What is the nature of moral reasoning and deliberation if value is totally divorced from fact? Either it must be identified with theoretical truth concerning existence, in which case it will be irrelevant to what we ought to do; or else it will concern arbitrary preferences which cannot be rationally justified. Moral reasoning will be reduced either to abstract theorizing, having no moving power except by accident, or to the rationalization of irrational bias. If this is in fact the case-all moral alternatives have equal standing in the universe of discourse, which reduces to moral malaise and metaphysical atomism. Kantian ethics is grounded on radical separation of the numenal realm of value (The "intelligible world") and the phenomenal realm of fact. The categorical imperative is laid down by the human mind without being grounded in any observable reality. Hence, it is empty of empirical contact and seems to reduce to an abstract principle of formal consistency. Thus, the only answer to the quest ion--why should I be moral? is simply that you should be. Utilitarian ethics makes no clear distinction between raw appetite or interest, and that deliberate or voluntary desire which is fused with practical reason. Value, or pleasure, or satisfaction is the object of any interest, no matter how incidental or distorted it may be. Reason, where function is exhausted in working out schemes for the maximizing of such interests as happens to arise through chance or other irrational causes. Ultimately, this reduces to moral relativism, the rational effort at justifying irrational situationalism or contextualism. Contemporary Ethical Theory has terminated in the Death of Ethics!
e. Five false views of Natural Law: 1. Natural Law based upon a dubious inferential teleology. 2. Natural Law as a vague and indeterminate moral standard. 3. Natural Law as a confusion of descriptive with prescriptive law. 4. Natural Law as an example of the naturalistic fallacy (Cf. G. E. Moore: Critique of Ethical Hedonism and discussion of the Naturalistic Fallacy; i.e. scientifically inferring from "is" to "ought").
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f. Atomistic Presuppositions (i.e. unity of one and the many):
1. Atomistic pluralism, i.e. ultimate reality composed by radically dis-unified component elements.
2. Ultimate components of reality—non-related--necessarily--universally.3. Atomistic pluralism precludes--rationally correlating the theoretical and practical. The
Christian Paradigm denies all forms of atomistic pluralism (Cf. Pluralism is antireductionistic, but this becomes an irrational chancistic decision).
g. Natural Law as a conservative--reactionary influence in history:
1. R. Catholic theory of natural law ethics. 2. Marx dialectical process of reality.3. Darwin's Evolutionary model of reality.4. Popper's Critique—as "Spiritual Naturalism" yet his position cannot escape relativism because
he fails to explain how moral attitudes that result from partially arbitrary individual preferences with no foundation in fact, escapes the twin dogmas of subjectivism and relativism. 5. united nations—Universal Declaration of Human rights (Dec. 10, 1948) in a relativistic/pluralistic world which rages for order. 6. Cf. Sophistic scepticism, conventionalism, classical liberal progressivism.
h. Can Scepticism/Relativism/Conventionalism generate rational criticism of Social Institutions and basis for Social Reform? Moral entailment of materialism deny human freedom, dignity, responsibility, i.e. rational basis of Praise or Blame, which show up in contemporary socio-biologically based theories of penology—crime and punishment theories. (See section on Christian Paradigm and Crime and Punishment from Dostoevski to Menninger).
i. Blackstone declared in his Commentaries (the first comprehensive textbook of Anglo-American common law, and the chief source of Abraham Lincoln's legal education): "Man, considered as a creature, must necessarily be subject to the laws of his Creator. ... No human laws should be suffered to contradict these." (From the Simon Greenleaf School of Law bulletin, Dr. J. W. Montgomery, Dean)
HISTORIOGRAPHY OF NATURAL LAW THEORY
A. Christian Moral Paradigm and Alternatives: 1. Kantian Moral Paradigm holds that the human mind autonomously lays down its own moral law. 2. The Utilitarian Paradigm asserts that values are determined by arbitrary impulse and appetite (eg. Freud and Adorno's (et al.) use at Frankfort School of Social Research). 3. Moral Realism of Natural Law.
B. Existence and Value--How related—3 alternatives: 1. The act of existing is evil, and goodness lies in nonexistence; 2. It is neutral to value, neither good nor evil; and 3. Existing is good. The first generates—radical nihilism, the second generates--if goodness is nonexistent, there is no object for moral study, i.e. demise of Ethics. The Ontological separation of Value and Fact leaves only the subjective alternative and generates the necessary conclusion that
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values/norms of human constructions (see P. Berger, Social Construction of Reality). The Biblical paradigm presupposes that the Creator/Redeemer God is the origin and justification of both natural and moral order.
C. Domain Studies of the term Nature (Greek--phusis/Latin--Natura). Five Meanings:
Ultimate presupposition of Christian Paradigm is that there are norms grounded on the inescapable pattern of existence itself. This pattern is an order in which many diverse factors are brought together into a relational unity. The Biblical concept of the absolute origin of the universe--provides the Greed term … with a rational, personal ground. The Greek term …means growth or change, and refers to the normative order which is manifested in the acts of changing things. This order shows many aspects adapted to one another by the peculiar normative relation of fitness. Though the classical Greek pantheism viewed matter (…) as eternal is directly contradicted by the Biblical Paradigm (no word for nature, rather creation) it does theoretically maintain a rational order to the universe of particulars. (See Rushdoony's One and the Many).
Semantically, the word Nature was chosen to exercise the unifying function: 1. The word … is used to express the general relation of fitness and the dynamic entities ordered into a world or cosmos by this normative relation (see Kosmos in Kittel and C. Brown). 2. The word signifies the form or definite structure of a finite entity which determines its basic tendencies, and the kind of activity which will fittingly complete these tendencies. 3. The term often implies not only form (2) but also the tendencies determined by this form. 4. It also signifies the fitting direction of these tendencies in such a way as to lead them towards fulfillment, such fitting activity is said to be natural, or in accordance with nature. 5. Finally, … is often used to describe the good or fitting condition of existential fulfillment. A close approximation to this condition is said to be natural.
D. When these fundamental ontological conceptions are applied to the specific case of man as a part of nature, they entail three moral doctrines essential for "the rationality of the Biblical Paradigm: 1. Moral law is in no sense an arbitrary construction based on human wish or decree. It is grounded in human nature (see my syllabi—Imago Dei: Man Incarnate Subject; and Sin and Salvation) and the structures of creation. 2. Human Nature is incomplete without rational reflection and choice, free from automatic determinism and causal constraint. 3. Human good is the existential fulfillment of the human individual, but this fulfillment is never along classical individualistic lines nor contemporary Narcissistic egoism. (See Lasch's Culture of Narcissism). Growth/change is always within structure, even Paradigmatic Revolutions.
E. Classical Paradigm of Natural Law Theory:
1. Early Stoics--4th-3rd century and Meditations of Marcus Aurelius--121-180 AD).2. Thomistic Ethics (1225-74) based in creation—ex nihilo—contra Stoics, Plato, and Aristotle,
etc.
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F. Richard Hookes' (1553-1600) The Laws of Ecclesiastical Polity. 4. Hugo Grotius (1583-1645). 5. Thomas Paine (1737-1809). 6. T: Hobbes (1588-1679). 7. John Locke (1633-1704). The latter two are nominalistic utilitarian subjectivistic in theory and reveal a paradigmatic shift in thought as norms are not founded on the independent nature of existence, but rather on shifting desire and subjectively felt pleasure.
G. Natural Law Paradigm and Contemporary Ethical Theories (see my syllabus--Historiography of Philosophical Ethics: Tracing the Demise of the Christian Moral Paradigm).
NATURAL LAW AND CANON LAW
A. Definition of Canon Law in relationship to Visible Church Society (Law of Heaven--jus poll; Divine Law--jus divinium; Sacred Law--jus sacrum).
B. Greek word--Kanon--rule, norm or measure. C. Council of Nicaea I (325 AD-on Ecclesiastical Canon.D. lus Canonicurn--12th/13th centuries; Corpus luris Canonici--15th century, this term adopted
by Code of Canon Law of-1917.E. Nature/Function of Canon Law.F. Scientific Study of the History of Canon Law.G. Principles of Canon Law.H. Obligation of Ecclesiastical Law.I. Hermeneutics of Canon Law.J. History of Canon Law, Trent, Vat. I and Vat. II.K. Church and State: RC/Protestant.
CANON LAW BIBLIOGRAPHY
R. Metz, What is Canon Law? (New York, 1960).C. Kemmeren, "Recent Trends in the Science of Canon Law Towards a Theology of Canon
Law" Jurist 25 (1965), pp. 24-45.Paul E. Sigmund, Natural Law in Political Thought (Cambridge, Mass.: Winthrop Publishing,
1971).R. E. Rodes,"Canon Law as a Legal System: Function, Obligations and Sanction" Natural Law
Forum 9 (1964), pp. 45-94.G. LeBros et al., L'Age Classique, 1140-1378. Sources et theorie du droit (Paris:1965).
NATURAL LAW BIBLIOGRAPHY
Adaias, James I,., "The Law of Natura in Greco-Roman Thought." Journal of Religion, XXV, (1945), 97-115
________. "The Law of IIa-fure; Soois General Considerations," Journal of Religion XXV, (1945), 80-96.
Alien, J. W., Political Thought in the Sixteenth Century, London, 1920.Althusius, Johannes, Politics, translated and introduced by F. S. Carney, Boston, 1954.Aquinas,.Thomas, Treatise on lawArnold, P. X., Zur Frage das Naturrechts bei, Hartin Luther, Munich, 1937.
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Barker, Ernst, Natural Law in the Political World," The Hibbert Journal, (1942), 55-73.________. Greek Political Theory, London, 19l6.________. Introduction to Translation of Gierke's Natural Law and, the Theory of Society,
Cambridge, 1921. —— —— —— ———— —Barker, Ernst, Political Thought of Plato and Aristotle, New York, 1905.Barth, Karl, The Epistle to the Romans, London, 1933.________. A Shorter Commentary on Romans, London, 1955.Bencett, John. Christian Ethics & Social Policy, New York, 1946 (Appendix on Natural Law) Bode, Boyd H., "Justice Holmes on Natural Law and the Moral Ideal," Ethics, (l919), 397-404. Bohatec, Josef, Calvin imd das Recht, Graz, 1934.________. Calvins Lehre von Staat und Kirche, Breslau, 1937.Brand., F., Thomas Hobbes’ Technical Conception of Nature, London, 1928.Brcp.-m, Brend-on F., ed.. The Natural Law Reader, New York.Brunner, Emil, The Divine Imperative, London, 1937.________. Justice and the Social Order, New York & London, 1940.Bryce, James, Studies in History and Jurisprudence, 2 vols., Oxford, 1901.Burle, E., L. Notion droit naturel dans 1'anti quite grecque, Trevou, 1908.Burnet, J., Early Greek Philosophy, London, 1920._________. "Law and Nature in Greek Ethics," Ethics, (1897), 328-333.Carlyle, A. J., A History of Medieval Political Theory in the West, New York, 1903.Games, J. E., "Why Should I Obey the Law," Ethics, LXXI, l4-26.Chaneviere, M. E. j La Pensee politique de Calvin, Paris, 1937.Cohen, M., "Jus Naturale Redivivug," Philosophical Review, (l9l6),-760-777.Going, H., T. ie obersten Grundsaetze des Rechts, Heidelberg, 1947.Corwin, Edward S., The "Higher Law" Background of American Constitutional Law, Harvard
Law Review, XLII, (1921-29), 149-185, 355-409. Cranz, F. Edw., An Essay on the Development of Luther's Thought on Justice, Law, and Society,
Harvard Theological Studies XIX, Cambridge, 1959.Davidson, J. F., "Natural Law & International Law in Edmund Burke," Review of Politics XXI
(July, 1959), 463-94. Dodd., C. H., New Testament Studies, (ch. 6 "Natural Law in the N. T."), Manchester, 1953. Eckstein, W., Das antikg Ifaturrecht in sozial-philosophise her Bedeutung, Leipzig, 1925. Ehrenstroa, N., et. al., Christian Faith and Life, London, 1930. Ellul, Jacques, The Theological Foundation of Law, Doubleday, 1950.Figgis, J. N., Studies in Political Thought from Gerson to Grotius, 2nd ed., Cambridge, l9l6. Forell, G. T-L, "Luther's Conception of Natural Orders," The Lutheran Church Quarterly (1945),
160-177.Foster, K. D., Collected Papers, New York, 1929.Foster, K. D., Political Theories of Calvinists Before the Pariton Exodus," American Historical
Review, XXI, ITo. 3, (l5l6), 451-503.Fosc, Jaaes J., Natural Law," Catholic Sncyc., Vol. IX, pp. 75-79. (Bibliography of Catholic
Writings.) Fuller,, Lon L. “Reason and Fiath in Case Law,” Harvard Law Review, LIX (1946), 375-395.________. "American Legal Philosophy at Mid-Century," Journal of Legal Education, Vol. vi.
No. 4, (1954), 457-435.
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________. "Freedon--A Suggested Analysis," Harvard Law Review, XXVIII, Ho. 8," June (1955).
________. "Human Purposes of Natural Law," Journal of Philosophy, LHI (1955), 697-705.________. "Positivism and Fidelity to Law—A Reply to Professor Hart," Harvard Law Review,
mi (February 1955), 630-72.________. Morality of Law, Yale; 1964.Gierke, Otto, Natural Law and the Theory of Society, 2 vols., Cambridge, 1934.Gloede, G., Theologia naturalis in Calvin, Stuttgart, 1935.Gurvitchi Georges, "Natural Law,'' Encyclopedia of the Social Sciences, Vol. XI, 263-290.Eelnes, C. G., The Revival of Natural Law Concepts. Harvard, 1930. (Short history of Natural
Law concepts, in the first two chapters.)Hall, Jerome, Living Law of Democratic Society, Indianapolis, 1949.Hall, Jerome, ed. Readings in Jurisprudence, Indianapolis, 1933.Hart, H. L. A., "Positivism. and the Separation of Law and Morals," Harvard Law Review, 71
(1950), 593-523._________. The Concept of Law. Oxford, 195l.Harvey, L. G., "Locke's Secularized Natural Law and German Imperialism," Journal of Social
Philosophy and Jurisprudence, XX (l94l), 67-73.Hebert, A. G., Grace and Nature, London, 1937.Hocking, V E., The Present Status of the Philosophy of Law and of Rights, New Haven/ 1920. Hook, Sidney, ed. Law and Philosophy, New York, 1964.Hooker, Richard, Laws of Ecclesiastical Polity.Hortoa, W M , "Natural Law and International Order," Christendom, IX.Hu, Tao-Wei, "The Chinese Version of the Law of Nature," Ethics, XXXVIII (Oct. 1927) 27-43.Husseri, G., "Justice," Ethics, XLVI; (April 1937), 271-307.Jaeger, Werner, "The Problem of Authority and the Crisis of the Greek Spirit," in Authority and
the Individual, Cambridge, Mass., 1937, 240-250.Jones, L. W., Historical Introduction to the Theory of Law. Oxford, 1940.Kelsen, H., "Foundations of Democracy: Christian Natural Law Doctrine," Ethics LXVI. Kendal H, V., John Locke and the Doctrine of Majority Rule, Urbana, l94l.Kessler, P., “Natural Law, Justice and Democracy—Some Reflections on Three Types of
Thinking about Law and Justice,” Tulane Law Review, XIX (1944), 32-61.________. "Theoretic Bases of Law," University of Chicago Law Review, IX (l94l), 93-112. Kirk, R., "Burke and Natural Rights," Review of Politics, XIII (1951) 44l-515.Knight, F. K., "Natural Law: Last Refuge of the Bigot: Rejoinder," Ethics, LEG (pt. 1, 1948)
127-35. ________. "The Rights of Man and Natural Law," Ethics LIV (1944), 124-45.Krieger, Leonard, "Kant and the Crisis in Natural Law.” Journal of the History of Ideas, XXXVI,
(April-June 1955), 191-210.Laaprecht, S. P., The Moral and Political Philosophy of John Locke, New York, 19l8.Lewis, Ewart, "Natural Law and Expediency in Medieval Political Theory," Ethics, L (Jan 1940)
l44-l63.Locke, John, Second Treatise on Civil government. Editor, J. W. Gough, Blackwell, 1945. Lubienski, Z., Die Grundlagan des ethisch politischen Systems yon Hobbes, Iilinich, 1932.Maguire, G. P., "Plato's Theory of Natural Law," Yale Classical Studies, X (1947), 178.Maritairii, J., The Rights of Man and Natural Law, Hew York, 1943.
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Mayers, Eugene David, Some Modern Theories of Natural Law, Ph.D. thesis, Columbia, 1956.Myers, John L., The Political Ideas of the Greeks, New York, 1927. Piper, Otto A., "What is Natural Law?" Theology Today, II (1946), 459-71.Pollock, Sir Frederick, Essays in the Law, London, 1922.Pound, R., Introduction to the Philosophy of Law, Hew Haven, 1922.Ritchie, D. G. Natural Rights, London, l905.Rossiter, Clinton, "Political Theory of the American Revolution," Review of Politics XV, (1953)
57-103.Ryan, John A. and Boland, F. J., Catholic Principles of Politics, New York, 1940.Sabine, G. H., A History of Political Theory, Rev. Ed. Hew York, 1950. (Bibliography) Schrey, H. H., The Biblical Doctrine of Justice and Law, London, 1955.Stone, Julius, The Province and Function of Law, Sydney, 1945.Stone, Julius, and Sicroson, S. P., Cases and Readings on Law and Society, 3 vols. Strauss, Leo, Natural Right and History, Chicago, 1953.Strauss, L., "Natural Right and the Historical Approach," Review of Politics, XII (l950) 422-42.Stuapf, Saauel, “Natural Law,” Handbook of Christian Theology, New York, 1958, 245-49.Tarn, VI. W., "Alexander the Idea of the Unity of Mankind," Proceedings of the Brit. Academy
XIX (1932), 123-167.Thielicke, Helmut, Theologische Ethik, Tubingen, 1951.Troeltsch, Ernst, The Social Teaching off the Christian Churches, 2 vols.., New York, 1931._________. The Social Philosophy of Christianity, Zurich., 1922. Verdross, Alfred, Abendlandische Rechtsphilosophie, Wien, 1958.Vidler, Alee R. "Inquiries Concerning Natural Law," Ethics, XUV (Feb. 1942), 65-73.Vidler, Alee R. and Vjuitehouse, H. A., Natural Law, A Christian Re-Consideration, London,
1946.Weber, Max, Law in Economy and Society. Cambridge, Harvard Press, 1954.Velzel, E, Maturrecht und materiala Gerechtigkeit: Prolegomena zur einer Rechtsphilosophie,
Gottingen, 1951.Wild, John, Plato's Modern Enemies and the Theory of Natural law, Chicago, 1953.________. “Natural Law and Modern Ethical Theory.” Ethics, LXIII (1952), 1-13.Wilder, …, "Equivalents of Natural Law in the Teaching of Jesus," Journal of Religion XXVI
(1946), 125-135.Hindelband., W., A History of Philosophy, New York, 1925.Windolph, F. L., Leviathan and Natural Law, Princeton, 1951.Uright, B. P., Jr., American Interpretations of Natural Law. Cambridge, Mass. 1931. (Chapter XI
contains a typology of natural law).Zeiler, E., Stoics, Epicureans, and Sceptics, London, l880. (Natural Law. Tradition in the Roman
Catholic Church).
Begin, Raymond F. Natural Law and Positive Law. Washington, D.C.: The Catholic University of America Press, 1959.
Brown, B. F. The Natural Law Reader. New York: Oceana, 1960.Fisher, Ronald A. Creative Aspects of Natural Law. Cambridge: Univ. Press, 1950.Maritain, Jacques. The Rights of Man and the Natural Law. New York: Scribner's, 1943.Passerin d'Entreves. Natural Law; an Introduction to Legal. Philosophy. New York: Hutchinson's
Univ. Library, 1951.
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Toland, Terrence J. The Unjustified Man and Natural Law Observance. Roma: Pontificia Universita Gregoriana, 1956.
Saright, Benjamin F. American Interpretation of Natural Law. New York; Russell, 1962.Anan, S. "Some Trends of Legal Thought or Natural Law Study in Japan," Natural Law Forum,
VII (1962), 109-19.Barrett, E. "Natural Law and the Lawyer's Search for a Philosophy of Law," Catholic Lawyer, I
(1955), 128-42.Brown, B. "Natural Law Norms," Catholic Lawyer, IX (1963), 57-62.Carley, F. J. "The American Proposition and Natural Law: Murray and Douglas," Social Justice,
LIII (1961), 375-77.Cauchy, A. "A Defense of Natural Ethics," Proceedings of the American Catholic Philosophical
Association, XXIX (1955), 206-18.Dore, E. S. “Today's Climate of Opinion: Order: the Philosophic Basis of Natural Law,"
Fordham Law Review, XXIV (1955), 519-34. Farrell, P. M. "Sources of St. Thomas" Concept of Natural Law," Thomist, XX (1957), 237-94.Fay, C. "Natural Moral Law in 'the Light of Cultural Relativism and Evolutionism,"
Anthropology, XXXIV (1961), 177-91. Gale, Richard M. "Natural Law and Human Rights," Philosophy and Phenomenological
Research, XX (1959-60), 521-31.Leclercg, J. "Natural Law the Unknown? Immutability and the Development of Knowledge,"
Natural Law Forum, VII (1962), 1-15. McKinnon, H. R. "Natural Law and the Gentiles: Some Observations on the Denial of Natural
Law in Modern Times," Catholic Univ. Law Review, V (1955), 1-9.Palmer, B. W. "Natural Law and Pragmatism," Catholic Lawyer, II (1956), 150-60. Seiznick, P. "Sociology and Natural Law," Natural Law Forum, VI (1961), 84-108.
THE CHRISTIAN PARADIGM-LAW, CRIME AND PUNISHMENT(FROM DOSTOEVSKI TO MENNINGER)
A. Christianity and Criminal Law; Motive and Method
1. Every penal practice is necessarily based on a particular conceptualization of the human person, his nature, rights, and destiny.
2. Every penal practice also entails implicit assumptions about the purpose of law and society and what constitutes a proper standard for interpersonal relationships.
3. Neo-Marxist Liberation thought, i.e. Critical Reflection grounded in Social Structural analysis and Penology—e.g. Latin American theologian Gustavo Guitierrez.
4. Concept of Praxis is defined as "the critical relationship between theory and practice, whereby each is dialectically influenced and transformed by the other."
5. Karl Rahner's theological anthropology6. Bonhoeffer's concept of man for others and its Sociological and Ecclesiastical significance.
B. "Historical reflection," writes Moltmann, begins where tradition have no longer kept pace with the present and are not experienced as being unquestionably obvious" (Hope and Planning, p. 101).
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C. Biblical Paradigm and Crime--egs. I Cor. 6:1, 11. (See Pedersen and deVaux on Sociology of Israel in their classic works).
D. Apostolic Constitution—laws for governing the early church—concerning crime and punishment—emphasis on reconciliation of offenders with the community and with God.
E. Constantine/Theodosius (see C. Cochrane, Christianity and Classical Culture and The Impact of Church Upon Its Culture, ed. J. Bauer, University of Chicago).
F. Penal models: Medieval to Modern.
G. American Penal Models and Christian Influence: Toward the Secularization of Mercy—Puritan and Quaker Roots.
1. Calvinist influence and the extension of the Ten Commandment s. Cf. Talionic aspects, i.e. "a life for a life"—"Execution Sermon".
2. Quaker Paradigm—rejected the prevailing penal theory of their time. Each criminal was to be considered an end in himself or herself, not a means for preserving the social order. (Cf. Imago Dei, Sin as personal and social, i.e. Sin and evil are expressed in Social Structures which are institutionalized in Legislation and cultural mores).
3. British/Post-revolution American models of the penal system. Philadelphia became center for paradigm shift—e.g. Pennsylvania Prison Society—morals 'Instructors: "The utmost that can be claimed for any reformatory system of punishment is its predisposing influence to serious reflection. . . The power of Divine Grace we know can effect a change in the heart of any man under any circumstances, and God always works by means adapted to the end; but so long as 'evil communications corrupt good manners'; the association of evil men places an almost insuperable obstacle to moral improvement of the already corrupted. The separation of convicts removes that obstacle.
4. Morals Instructors—Conversion by coercion—repent or else! "... when, as punishment to a sturdy and disorderly convict, the Warden has ordered the light of his cell to be closed, a little time has elapsed with the most hardy before a prisoner has been found broken down in his spirit, and begging for hard work and his Bible to beguile the tedium of absolute idleness in solitude . . . work and moral religious books are regarded as favors and are withheld as punishment."
5. The Auburn System.
6. Elam Lynds, a famous warden of Sing Sing Prison in New York maintained: "In order to reform a criminal you must first break his spirit." (See Orlando Lewis, The Development of American Prison Customs 1776-1845 (Montciair, New Jersey: Patterson-Smith, 1967); H. E. Barnes, The Evolution of Penology in Pennsylvania (Indianapolis: The Bobbs-Merrill Co., 1927); David J. Rothman, The Discovery of the Asylum (Boston: Little, Brown & Co,, 1971); Ramsey dark. Crime in America (New York: Simon and Schuster, 1970); Karl Menninger,
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The Crime of Punishment (New York: Viking Press, 1969); Manual of Standards American Correctional Association (Washington, D.C.: 1959); R. Goldford, Jails—The Ultimate Ghetto (New York: Anchor Doubleday, 1975).
7. Punishment and Repentance: The Inquisition and the Monastic Prisons (see Mabillon's Reflection on the Prisons of the Monastic Orders—and esp. Thorsten Sellin's "Dom Jeon Mabillion--A Prison Reformer of the 17th Century," Journal of Criminal Law and Criminology Vol. XVII, pp. 581-602; Wm. L. dark and Win. L. Marshall, A Treatise on the Law of Crimes, 6th ed. (Chicago: Callaghan, 1958). For Luther/Calvin see E. Troeltsch, The Social Teaching of the Christian Churches (New York: Harper-Torch, 2 vols.). The penitentiaries continue, but they are "no longer buttressed by the social context and the psyehological presuppositions which called them forth" (pp. 586-87--T. Sellins article above). They were pseudo-religious institutions, retaining a religious title, a cathedral-like exterior, and monastic cells, but the individuals responsible for these innovations and their good intentions had since become history.
8. The Reformatory Movement: The 1870 First Congress of the National Prison Association (American Correctional Association) resulting declaration proposed--"The objective of 'moral regeneration' of the prisoner as opposed to 'vindictive suffering': classification of criminals based on character as determined by their progress in prison; and the undeterminate sentence under which the offender would be released as soon as the moral cure had been effected and satisfactory proof of reformation obtained" (Ibid. pp. 599-600). Here we note a paradigmatic revolution from sin to crime and sickness (i.e. Legal/Medical models of both sin and salvation, i.e. wholeness).
9. Elmira Reformatory in New York: Elmira System. "As Lawrence Friedman documents in his study on American law: Somehow reforms never took hold; or were perverted in practice. The fact is that convicts, like paupers and blacks, were at the very bottom of American society; . . . People detested crime, and were afraid of it. They wanted criminals punished, and severely; even more, they wanted bad people kept out of sight and circulation. Despite the rhetoric, the evidence of what men did shows that they considered it more important to warehouse, quarantine, and ' guard the 'criminal class' than to cure them of their habits." (See L. M. Friedman, A History of American Law (New York: Simon and Schuster, 1973); also G. 0. W. Mueller, Crime, Law and the Scholars (Seattle: University of Washington Press, 1969).
10. Rehabilitation/Treatment Model: 20th Century Paradigmatic Shift (see R. dark and K. Menninger's works noted above.).
a. Psychoanalysts' explanation of crime, "Criminality presupposes specific childhood conflicts and their insolubility ... In many instances the social factor in crime is either an excuse or a rationalization for hidden unconscious motives. The focal point of the criminal act is the repetition of injustices experienced in reality or fantasy in the child-mother (later, father) relationship, projected and perpetuated masochistically upon society."
b. Law reduced to psychoanalysis—morality, responsibility, and reduction of law to
psychohistoriography. Person not a person after all, but rather totally determined automaton.
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c. Culmination of Reductionism—Law to socio-biological-genetic-environmental determinism. Legal decision-making grounded in highly subjective affirmations of psychoanalysis. The authority of the elite becomes decision-making paradigm, neither law nor moral responsibility have any objective justification, nor does the criminal have any objective-moral-guilt-responsibility. Society causes the criminal, and society is responsible for and to the criminal. Now one paradigm is fused with another--person is not a person and society alone has ontological responsibility. Sociology of Law and Sociology of Crime and Rehabilitation. "In Thomas Szaz' ironic analogy: Modern psychiatric ideology is an adaptation--to a scientific age—of the traditional ideology of Christian theology. Instead of being born into sin, man is born into sickness. Instead of life being a vale of tears, it is a vale of diseases. In short, whereas in the Age of Faith the ideology was Christian, the technology clerical, and the expert priestly; in the Age of Madness the ideology is medical, the technology clinical and the expert psychiatric." Thomas Szaz, Ideology and Insanity—Essay on the Psychiatric Dehumanization of Man (Garden City, New York: Doubleday, 1970), p. 36.
11. Nature of Christian Faith Paradigm and its Legitimizing Force: Trace Change Models of Christian Paradigm and its Legitimizing Force—Crisis in Legitimization. "The National Advisory Commission on Criminal Justice Standards and Goals concluded in 1973: The failure of major institutions to reduce crime is incontestable. Recidivism rates are- notoriously high. Institutions do succeed in punishing, but they do not deter. They protect the community, but that protection is only temporary. They relieve the community of responsibility by removing the offender, but they make successful reintegration into the community unlikely. They change the committed offender, but the change is more likely to be negative than positive." Report on Corrections (U.S. Government Printing Office, Washington, D.C., 1973), p. I. H. Christian Paradigm vs. Penal Ideology.
1. Penal Theory and Ideology, i.e. defense of existing institutions of punishment, the state, criminal law, and prisons/jails, etc.
2. Leo Tolstoy—"By what right do some people punish others?" As legal philosopher H. L. A. Hart warned: "... the major positions concerning punishment, which are called retributive or deterrent or reformative 'theories' of punishment are moral claims as to what justifies the practice of punishment—claims as ty why, morally, it should or may be used." H. L. A. Hart, "Murder and the Principles of Punishment: England and the U.S." '52 Northwestern Law Review (1957), pp. 446-7.
3. How does Christian Paradigm understand and influence the way I/me face the Reality of Crime? World-view and its entailment.
4. Inadequacy/Limitation of Retribution. Key to retribution—is the contention that those who 'do evil' deserve to suffer as a matter of right and justice. (Note implications for Suffering Servant, The Cross, Atonement, Heaven/Hell. Contemporary paradigm is basis of the rationality of Universalism in theology/missions/evangelism—WCC, etc. i.e. the Rise and Fall of Heaven and Hell in Western civilization—The Demise of the Christian Paradigm).
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5. Punishment/Love/Vengeance—O.T. 'Lex Talionis' and Neo-Puritan influence-compare K. Menninger's Crime of Punishment and Whatever Happened to Sin?
6. Lex Talionis/Retaliation and Justice. "As Raymond de Vaux observed: In the oldest text, that
of Exodus, it (the lex talionis) is in fact followed immediately by a law which orders the liberation of a slave in compensation for the loss of an eye or a tooth (Ex. 21:26-27), and it is preceded by a law which, for an injury inflicted in a fight, orders only the payment of a compensation and medical expenses (Ex. 21:18-19). Only in one case is strict retaliation exacted: the guilty murderer must die and cannot buy his freedom. This rigour is justified by a religious reason: the blood which has been shed has profaned the land in which Yahweh dwells (Nb. 35:31-34)." Roland de Vaux, Ancient Israel (New York: McGraw-Hill Co., 1961), p. 149.
7. Israelite Code, "Unlike other Eastern laws, limited capital punishment for offences against the purity of worship, against the sanctity of life and the sources of life, and this religious motive is usually expressed in the laws", (ibid., p. 158). Emil Brunner also affirms that Israel was a theocracy in the following manner: "The law of the state was at the same time the law of the religious community and the law of the religious community was the law of the state. The laws of religion and the synagogue were enforced by the same coercive means as those of the state, and transgressions of them punished in the same way as transgression of civic law." E. Brunner, Justice and Social Order (New York: Harper, 1945), p. 118; also read Ex. 33:10; Matt. 5:38-9; Lk. 6:37; Lk. 6:41-2. Crucial to this issue is how Justice is related to the State (see Brunner, ibid., p. 120; and C. S. Lewis, The Humanitarian Theory of Punishment; and Yoder's, Politics of Jesus.
8. Classical Objections to Deterrence Theory of Justice. "As Chicago's Norval Morris writes: Every criminal law system in the world, except one, (Greenland) has deterrence as its primary and essential postulate. It figures most prominently throughout our punishing and sentencing decisions, legislative, judicial and administrative." University of Chicago Law Review, 1966, p. 63; see also F. Zimring and G. Hawkins’ Deterrence (Chicago: University of Chicago Press, 1973).
9. Fallacy of Deterrence as Dehumanizing and thus if dehumanizing--anti-Christian. This is the central weakness of G. A. McHughs’ Christian Faith and Criminal Justice, Paulist Press, 1978—as he uncritically assimilates the structuralistic implications of New-Marxian Social Theory. No contemporary Marxist Society functions in the naive manner suggested by McHughs unrealistic model of human nature and how to rehabilitate him. He constantly implies that Deterrence is expressed by Elam Lynds dictate that to reform criminals--"you must first break their spirit" is still a motivating principle in American penology.
10. The new Neo-Marxian Humanization Plan (Cf. Human Rights where Atheistic-Naturalism dominates the moral and penological paradigm.
11. Christian Paradigm alone can rationally avoid the conclusions of H. Boransson, former Director General of Swedish National Prison Board who states that--"From the crass viewpoint of social utility, many people are 'worthless'--in fact, this word is much too vague,
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the truth being that many individuals are physically, mentally or morally a burden to society and sometimes a permanent and heavy one. There exists no rational reason to provide for them or to provide expensive care . . . Much money could be saved if one could get rid of them or at least reduce the costs of maintenance to the minimum."
12. Kant: Philosophy of Law--"it is immoral to ever treat people as means to an end" (see my syllabus--Historiography of Philosophical Ethics--section on Kant; and Reinhold Niebuhr, Nature and Destiny of Man (New York: Scribner, 1957), I vol.
13. Luke'-Pericope—Chps. 12-19--'Outcasts'--The Gathering of the Ungifted.
14. Fallacies of Treatment Paradigm (see W. Glasser, Reality Therapy (New York; Harper, 1965); also Roger's Non-Directive Model).
15. Sin/Freedom/Manipulation: Salvation by Psychology Syndrome. Read the profound might of Victor Frankl. "If we present a man with a concept of man which is not true, we may well corrupt him. When we present man as an automaton of reflexes, as a mind-machine, as a bundle of instincts, heredity, and environment, we feed the nihilism to which modern man is, in any case, prone." (V. Frankl, The Doctor and the Soul (New York: Vintage Publishing, 1973), p. XXI; and Bernard Herung, Ethics of Manipulation (New York: Seabury Press, 1975).
16. Witnessing Disciples and Anti-Christian Paradigms in Law/Penology. I. Prolegomena of a Christian Approach to Criminal Justice.
1. Love Enemies--Matt. 5:43ff. Enemy as a person who is ultimately responsible to God and His Word--Promise--Purpose and Presence.
2. All Encompassing Love—Matt. 22:37-40.3. Love/Forgiveness/Reconciliation/Hope.4. Sin as both Personal (vs. Private) and Social.5. Salvation as both Personal and Social, i.e. Community creating. (See my syllabi--Sin and
Salvation).6. Isa. 61:1-2; Lk. 4:16ff; Mat. 25; "in prison"; Heb. 10:34; Heb. 13:3.7. Legal/Socio-political Dimensions of Criminal Justice.8. Challenge of/to Crime.
CLASSICAL MARXIST THEORY OF LAW
A. Soviet Constitution and its Historical Development.
1. 1918 Constitution2. 1924 Constitution3. 1936 Constitution
B. Social Structure of USSR
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C. State Structure of USSR D. System of Soviet State OrgansE. Courts and the Procurator's OfficeF. Fundamental Rights and Duties of CitizensG. Soviet Electoral SystemH. International Communism and its Legal ImplicationsI. Euro-Communism and International Law
BIBLIOGRAPHY
A. D. M. Kirichenko, Soviet State Law (Moscow: Foreign Languages Publishing House, 1960).
CRUCIAL ISSUES IN PHILOSOPHY OF LAW PARADIGM
A. Law, Reason and IdealismB. Law, Reason and RelativismC. Law, Reason and PositivismD. Law, Reason and NaturalismE. Law, Reason and PragmatismF. Law, Reason and SecularismG. Law, Reason and Psychoanalysis (Consciousness—from Hegel to Marx, Freud. See
Psychohistoriography). Place of Roman Law in Western Civilization
1. Abbreviations:
BIDR: Bullettino dell'Istituto di Diritto RomanoCod.Just.: Code of JustinianCod.Theod.: Theodosian CodeDig.: Digest of JustinianGai.: Institutes of GaiusRE: Pauly-Wissowa-Kroll, Realenzyklopadie der Klassischen Altertums-wissenschaftZ.Sav.St.: Zeitschrift der Savigny Stiftung fur Rechtsgeshichcte, Romanistische Abteilung
2. Historiography of Constitutional Background of Roman Law
A. Roman State: From Primitive to The Republic
B. Roman Republic
1. The Officials:
a. The Consulb. The Praetorc. The Aedilis
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d. The Quaestore. The Censorf. The Dictatorg. The Tribunes of The Plebs
2. The People:
a. The Comitia Curiatab. The Comitia Centuriatac. The Comitia Tributa and Concilia Plebis
3. The Senate:
a. Imperial Governmentb. The Principatec. The Dominate
C. Historiography of Law
1. The Twelve Tablets 2. The lus Civile3. The lus Honorarium4. The lus Gentium5. The Imperial Law
D. Influences of Roman Law in Medieval/Modern Times
1. Byzantine Law (c.f. Koran and Muslim Law)2. Triumph of Roman Law in Medieval Western Europe3. Roman Law in Post Renaissance/Reformation Europe
a. The Humanistsb. Natural Law (see section on Natural Law)c. Historical School (Opposition to Natural Law; 18th/19th centuries Paradigmatic Revolution
vs. The Historicity of all reality)d. Roman Law: 19th century terminal pointe. The Foundations of the Sociology of Law based in Anthropology (Note cultural/linguistic
relativism as 19th century paradigm)
BIBLIOGRAPHY
Jolowicz, H. F. Historical Introduction to the Study of Roman Law. 2nd ed.Cambridge, 1939.Radin, Max. Handbook of Roman Law. St. Paul, MN, 1927.Buckland, W. W. A Textbook of Roman Law from Augustus to Justinian. 2nd ed. Cambridge,
1932.
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Burdick, W. L. The Principles of Roman Law and Their Relation to Modern Law. Rochester, NY, 1938.
Wenger, L. Institutes of the Roman Law of Civil Procedure. New York, 1940.Schuiz, F. History of Roman Legal Science. Oxford, 1946.Abbott, F. F. Roman Political Institutions. 3rd ed. New York, 1911. Homo, L. Roman Political Institutions. From City to State. Chicago, 1929.Moore, R. W. The Roman Commonwealth. London, 1942.Stevenson, G. H. Roman Provincial Administration to the Age of Antonines. New York, 1939.Wylie, J. Kerr. Roman Constitutional History to the Death of Justinian. Capetown, 1948.Mommsen, Theodor. Romisches Staatsrecht. 3 vols., 3rd ed. Leipzig, 1887-88.Hammond, M. The Augustian Principate in Theory and Practice during the Julio-Claudian
Period. Cambridge, MA, 1933. Strachan-Davidson, J. L. Problems of the Roman Criminal Law. Oxford, 1912. Buckland, W.W. "Praetor and Chancellor" in Tulane Law Review. Vol. XIII, 1934. pp. 163-77.Buckland and McNair, A.D. Roman Law and Common Law: A Comparison in Outline.
Cambridge, 1936.Pringsheim, F. "The Unique Character of Roman Classical Law," in Journal of Roman Studies
Vol. XXXIV (1944): 60ff.Collinet, P. Etudes historiques sur Ie droit de Justinien, Vol. II; Histoirede l'ecole de Beyrouth
(Paris. 1925). Mitteis, L. Reichsrecht und Volksrecht in den ostlichen Provinzen des romischen Kaiserreichs
Mit Beitragen zur Kenntnis des griechischen Rechts und der spatromischen Rechtentwicklung (Leipzig, 1891).
E. Levy. "Westen und Osten in der nachklassischen Entwicklung des romischen Rechts," in Z. Sav. St., Vol. XLIX (1929), 230-59. Also, West Roman Vulgar Law: The Law of Property (Philadelphia, 1951).
F. Pringsheim. "The Character of Justinian's Legislation," Law Quarterly Review Vol. LVI (1940), 229-46.
Levy, E. and Rabel, E., eds. Index interpplationum quae in lustiniani Digestis inesse dicuntur. Sanders, T.C. The Institutes of Justinian with English Introduction, Translation, and Notes (London and New York, 1922).
Scott, S. P. The Civil Law. including the XII Tables, the Institutes of Gaius, the,Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions of Leo, Trans from the Original Latin and Compared with All Accessible Systems of Jurisprudence Ancient and Modern (17 vols., Cincinnati, 1932).
Seckel, E. Heumanns Handlexikon zu den Ouellen des romischen Rechts (9th ed.,Jena, 1907).Monier, R. Vocabulaire de droit remain (4th ed., Paris, 1949).Maitland, F.W. English Law and the Renaissance (Cambridge, 1901). Hazeltine, H. D. "The Renaissance and the Laws of Europe," Cambridge Legal Essays
(Cambridge, 1926).Yntema, "Roman Law and its Influence on Western Civilization," Come...Law Quarterly, Vol.
XXXV (1949).
James D. Strauss
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