Skip to main content Accessibility help
×
Home

Pilgrim Law*

  • Robert E. Rodes

Extract

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose your breath climbing, bizarre opening hours, a wing or two closed for restoration, and a few kindly people who will sometimes show you where the elevator or the back door is hidden.

It is the cultural range of the subject matter that makes the study of jurisprudence interesting. There are philosophies of law, some good, some bad, some indifferent, but philosophy does not exhaust the subject of jurisprudence, because major jurisprudential questions (for example, what is a corporation) are not philosophical. There are theologies of law also, but they do not exhaust the subject either. As Christopher St. Germain had a sixteenth century theologian point out to a law student, the law of God is not concerned with land titles. Granted, it would be possible to distribute land titles in such a way as to offend the law of God, but the point stands nevertheless. It would also be possible to build a theologically unacceptable house (say a firetrap), but that does not make architecture a branch of theology.

Copyright

Footnotes

Hide All
*

This essay, with a few modifications, will be the first chapter of a book of the same name currently in preparation.

Footnotes

References

Hide All

1. Christopher St. Germain, Doctor and Student Dialogue I, chap xxi. One edition of this work is Plucknett, T.F.T. and Barton, J.L, eds, St. Germain's Doctor and Student (Selden Society, 1974).

2. Hart, H.L.A., The Concept of Law, 171–73 (Oxford U Press, 1961).

3. Gaudium et Spes and a large selection of other documents are gathered in O'Brien, D.J. and Shannon, T.A., eds, Renewing the Earth (Image Books, 1977). The premiere work of liberation theology is Gutierrez, Gustavo, A Theology of Liberation (Orbis, 1973).

4. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, Chapter II “Of the Principle of Utility” in Morris, Clarence, ed, The Great Legal Philosophers 261, 262–3 (U of Pennsylvania Press, 1959).

5. Pound, Roscoe, Social Control Through Law, 65 (Yale U Press, 1992).

6. Sherman v US, 356 US 369, 380 (1957) (Frankfurter concurring).

7. Pharr, Clyde, ed and tr, The Theodosian Code (Princeton U Press, 1952).

8. Id, 12:1:16.

9. See my Ecclesiastical Administration in Medieval England, 6872 (Notre Dame Press, 1977).

10. Macaulay, Thomas Babington, “Comic Dramatists of the Restoration,” in Trevelyan, Lady, ed, The Miscellaneous Works, 109, 121, 126 (Harper, 1880).

11. Pound, , Social Control at 64 (cited in note 5).

12. Gaudium et Spes, ¶ 1.

13. Noonan, John T. Jr., Persons and Masks of the Law, xii (Farrar, Strauss, and Giroux, 1976).

* This essay, with a few modifications, will be the first chapter of a book of the same name currently in preparation.

** Professor of Law, University of Notre Dame Law School.

Metrics

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed