Conflict between the morality and the politics of law...may often be resolved... in the context of historical circumstances....This is, indeed, a fundamental characteristic of law, which may be defined as the balancing of justice and order, of reason and will, in the light of historical experience, in the light of memory.History is downplayed in modern jurisprudence. Law is not found; it is made. This is a retreat from the English common law assumption of an "ideal law." This is the foundation of the first law school at Bologna in the eleventh century; it is the assumption of stare decisis; and it is the assumption of our written laws. Are written laws are history. Even positivists believe in history.
Monday, April 11, 2005
Holy Spirit Jurisprudence
World Law: An Ecumenical Jurisprudence of the Holy Spirit by Berman