The Philosophy of Positive Law: Foundations of Jurisprudence
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A key feature of the book is that readers are not simply presented with opposing theories, but are guided through the rival standpoints on the basis of a coherent line of reflection from which an overall sense of the subject can be gained. Chapters on Hart, Fuller, Rawls, Dworkin and Finnis take the reader systematically through the terrain of modern legal philosophy, tracing the issues back to fundamental questions of philosophy, and indicating lines of criticism that result in a fresh and original perspective on the subject.
Natural law may dictate that polities exist and that the governments of such polities have some authority, but natural law does not dictate a specific distribution of power. To be sure, Arkes never denies that the axiomatic principles of morality and the institutional principles of jurisdiction are distinguishable.
Yet he so emphasizes the nonarbitrary character of moral logic that the arbitrary character of institutional offices and of most positive law is given short shrift. It is one thing to defend the idea that there are principles of justice not dependent upon local conventions; it is quite another thing to defend the distribution of authority according to a particular order of positive law.
If Arkes is to convince conservatives that Sutherland was correct in his jurisprudence of substantive due process, he will have to convince them that it comports with the institutional logic of authority under this Constitution, and not merely that the moral logic Sutherland brought to particular cases was sound and consistent.
Interestingly, Sutherland did not rule out the possibility that New Deal schemes, however improbably, could promote justice in the substantive sense. But he did question whether the Constitution authorizes the federal government to pursue such schemes, even in the name of justice.
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The universality of a right does not imply universality of jurisdiction to enforce it. One cannot help but note the analogy to some Republicans today, who cast the principle of federalism in precisely these terms. Arkes points out that this amateur science is a simulacrum of legal reasoning. It has little capacity to enlighten us as to the principles that ought to govern the use of power.
On this score, we could hardly disagree with Arkes.
Given the choice between policies determined by the moral logic of Sutherland versus policies determined by the shallow, managerial methods of the Brandeis school, it is not hard to see where liberty is best protected. Nevertheless, the difficult question still remains: According to what norm do we distinguish the rightful and wrongful exercise of the police powers of the states?
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Even if we agree with Arkes that there exist stable moral principles governing justice in economic matters, we are also interested in who has authority to make laws with regard to buying and selling. To show that the conclusion cannot be reached by a managerial index does not show that it can be reached by means of abstract moral principles.
To show Brandeis wrong is not to show Sutherland right, for the question of the positive constitutional law distributing authority still remains. Fundamental principles must be distinguished from contingent cases that exemplify those principles.
Law's Positivity in the Natural Law Jurisprudence of Thomas Aquinas
These ideas are the stock-in-trade for anyone avowing a classical jurisprudence, and Arkes expounds them masterfully. The Constitution, however, consists largely of rules distributing authority-rules that are not adequately characterized in terms of necessary propositions. Although Arkes via Sutherland gets close to the nub of this problem in the chapters on the New Deal, he is more intent upon winning the argument about the authority of moral reasoning against skeptics, both left and right.
There are other critics, however, who are not moral skeptics, but hold that the positive law of the Constitution places institutional restraints upon how and by whom moral arguments can be made. Close Login.
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