Reason and Law: Studies in Juristic Philosophy

Reason and Law: Studies in Juristic Philosophy

Reason and Law: Studies in Juristic Philosophy

Reason and Law: Studies in Juristic Philosophy

Excerpt

The philosophy of any special subject-matter, such as the law, I take to be the effort to view it as part of a larger whole wherein it moves and has its being. From this point of view no hard and fast line separates the philosophy from the science or theory of law,--the distinction between them can only be one of the degree of generality of our interest.

Though professional legal writings are naturally dominated by practical and technical issues, the great jurists have always drawn directly or indirectly on what philosophers such as Aristotle, Aquinas, Leibniz, Kant, and Hegel have written on the law. It is only in the last century that philosophy almost entirely ceased to pay attention to the nature of legal institutions and other historic realities, and became absorbed in the psychologic or epistemologic problem of how we come to know anything at all. On the other hand, the distrust, if not contempt, for jurisprudence or abstract legal theory has been strongest among English and American lawyers, largely because of the narrowly professional character of our law schools. The growing annexation of the latter by our universities tends to make law teachers aim at being scholars rather than mere practitioners, and this promotes a more liberal interest in legal theory. Unfortunately, relatively few teachers of law have had a scientific education, and so their conception of scientific method does not always rise above popular impressions.

One of the most widespread of these misimpressions is that philosophy proceeds deductively from intuitive or a priori first principles, while science proceeds inductively from an examination of the facts. Though this distinction is often asserted by scientists when they leave their work and begin to philosophize, it is clearly untenable at either end. (a) No science can be entirely inductive, and (b) if philosophy were purely deductive it would, like pure mathematics, be entirely . . .

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