![\"Lawbook.jpg\"](\"https:\/\/blog.beliefnet.com\/jesuscreed\/imgs\/Lawbook.jpg\")
<\/span>I announced last week that we are beginning a new series this week with David Opderbeck, a professor of law. He will educate us on law \u2014 should be fun.<\/i><\/p>\n<\/i>\n
My question for the opening post in this series is \u201cwhat is \u2018Law\u2019?\u201d<\/b><\/p>\n
Here\u2019s the questions for this post: Which approach \u2013 formalism or realism \u2013 better accounts for \u201claw\u201d and for the role of \u201claw\u201d in society?\u00a0\u00a0As Christians living in a post-industrial, scientific, and\/or postmodern age, are there approaches to \u201claw\u201d we can adopt without falling into either an extreme formalism or an extreme legal realism?<\/b><\/p>\n
Many people respond to this question with what legal scholars would call a \u201cformalist\u201d definition:\u00a0\u00a0<\/span>law is a set of rules or principles that govern behavior.<\/i>\u00a0<\/i>\u00a0\u00a0<\/span>This sort of definition raises important questions about the sources of \u201claw\u201d and the functions of a legal system.\u00a0\u00a0<\/span><\/p>\n In the Western tradition, \u201claw\u201d historically was rooted in metaphysics \u2013 for the Greeks, in the realm of pure thought (Plato\u2019s \u201cforms\u201d); for the Romans, in the divine authority of the Emperor; and for Christendom, in God, particularly as God\u2019s will was mediated through the Church, reason, and the King.\u00a0\u00a0\u00a0<\/span>During the Enlightenment, \u201claw\u201d was still mostly conceived of in formalist terms, but the primary source of law became reason, or \u201cNatural Law.\u201d\u00a0\u00a0\u00a0<\/span>This is why the Declaration of Independence grounds universal human rights in the \u201cLaws of Nature and of Nature\u2019s God.\u201d<\/p>\n<\/div>\n<\/div>\n By the late Nineteenth Century, however, many legal scholars A famous text in the development of \u201clegal realism\u201d<\/b> is In short, viewed from the \u201cbad man\u2019s\u201d perspective, \u201claw\u201d is The \u201crealist\u201d approach has had a profound effect on Western Which approach \u2013 formalism or realism \u2013 better accounts for \u00a0<\/p>\n Further reading:<\/p>\n Larry Solum\u2019s \u201cLegal Theory Blog\u201d includes an excellent Oliver Wendell Holmes\u2019 essay \u201cThe Path of the Law\u201d is Harold J. Berman\u2019s two-volume Law and Revolution: The Formation of the Western Legal Tradition<\/a> \u00a0<\/p>\n <\/p>\n<\/body><\/html>\n","protected":false},"excerpt":{"rendered":" I announced last week that we are beginning a new series this week with David Opderbeck, a professor of law. He will educate us on law \u2014 should be fun. What is \u201cLaw\u201d? My question for the opening post in this series is \u201cwhat is \u2018Law\u2019?\u201d Here\u2019s the questions for this post: Which approach \u2013 […]<\/p>\n","protected":false},"author":197,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1722],"tags":[],"class_list":["post-6196","post","type-post","status-publish","format-standard","hentry","category-law"],"yoast_head":"\n
\n<\/p>\n
\nand jurists had come to recognize that the supposedly universal foundations for
\nformalistic law were neither universal nor secure.\u00a0 <\/span>Broadly speaking, this skepticism was in accord with
\npost-Enlightenment intellectual history.\u00a0
\n<\/span>These scholars and jurists began to develop what we now call a \u201crealist\u201d
\ndefinition of \u201claw.\u201d<\/i><\/p>\n
\nOliver Wendell Holmes\u2019 essay \u201cThe Path of the
\nLaw<\/a>.\u201d\u00a0 <\/span>In that essay, Holmes
\nviews the law from the perspective of a \u201cbad man\u201d \u2013 a person whose conduct
\nmight run afoul of the law.\u00a0
\n<\/span>According to Holmes, the \u201cbad man\u201d cares nothing about whether \u201claw\u201d is
\ngrounded in reason, God, or Natural Law.\u00a0
\n<\/span>The \u201cbad man\u2019s\u201d only concern is whether, and to what extent, a
\nparticular judge or jury will punish him for his actions.\u00a0 <\/span>As Holmes eloquently put it, \u201cIf you want to know the law and nothing
\nelse, you must look at it as a bad man, who cares only for the material
\nconsequences which such knowledge enables him to predict, not as a good one,
\nwho finds his reasons for conduct, whether inside the law or outside of it, in
\nthe vaguer sanctions of conscience.\u201d<\/i><\/p>\n
\nmerely a social construct used to produce whatever social outcome the judge or
\njury deems desirable.<\/b>\u00a0 <\/span>References
\nto reason, God, or Natural Law in relation to \u201claw\u201d are superfluous at best.\u00a0 <\/span><\/p>\n
\njurisprudence.\u00a0 <\/span>The dominant
\nperspectives reflected in American legal education, including \u201claw and
\neconomics\u201d and \u201ccritical legal studies,\u201d have roots in legal realism.\u00a0 <\/span>Few law professors today would identify
\nthemselves as formalists (though in some circles there is a move towards a \u201cnew
\nformalism\u201d).\u00a0 <\/span>In most law school
\nclassrooms, including my own, judicial precedents are analyzed to examine the
\npolicy motivations behind the rules adopted by the court, not primarily to
\nextract from them universal principles of law.<\/p>\n
\n\u201claw\u201d and for the role of \u201claw\u201d in society?\u00a0 As Christians living in a post-industrial, scientific, and\/or
\npostmodern age, are there approaches to \u201claw\u201d we can adopt without falling into
\neither an extreme formalism or an extreme legal realism?<\/b><\/p>\n
\nentry on formalism vs. instrumentalism<\/a> (realism).<\/p>\n
\navailable online<\/a>
\nand as a part of a useful collection titled \u201cThe
\nCanon of American Legal Thought<\/a>.\u201d<\/p>\n
\n<\/strong><\/em> and Law and Revolution, II, The Impact of the Protestant Reformations on the Western Legal Tradition<\/a>
\n<\/strong><\/em> is a magisterial treatment of how Christianity shaped early
\nWestern notions of law.<\/p>\n
![\"\"](\"https:\/\/www.assoc-amazon.com\/e\/ir?t=jescre-20&l=as2&o=1&a=0674517768\")
![\"\"](\"https:\/\/www.assoc-amazon.com\/e\/ir?t=jescre-20&l=as2&o=1&a=0674022300\")