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Theory, Identity, Vocation: Three Models Of Christian Legal Scholarship, William Brewbaker
Theory, Identity, Vocation: Three Models Of Christian Legal Scholarship, William Brewbaker
William S. Brewbaker III
Recognizably Christian scholarship is becoming more commonplace in the American legal academy, yet little systematic attention has been given to fundamental questions of approach. This article highlights moments of continuity and discontinuity between Christian legal scholarship and its secular counterparts. Contrary to the expectations generated by contemporary political debate, the distinctive contribution of Christian legal scholarship is not primarily to provide ammunition for political programs of the right or the left, but to situate law and human legal practices within a larger story about the world. This article develops three models of Christian legal scholarship - theory, identity and vocation. …
Found Law, Made Law And Creation: Reconsidering Blackstone's Declaratory Theory, William Brewbaker
Found Law, Made Law And Creation: Reconsidering Blackstone's Declaratory Theory, William Brewbaker
William S. Brewbaker III
The subject of this paper is Blackstone's famous declaratory theory of law - the claim that judges find the law, rather than make it. Blackstone's claim is widely rejected in the legal academy, often because Blackstone is (wrongly) associated with the brooding omnipresence view of law rejected in cases like Erie, Guaranty Trust and Southern Pacific Co. v. Jensen. I argue that Blackstone's theory fails for other reasons - namely, because his account does not square well with law practice as it exists and because his distinction between legislative lawmaking and judicial declaration is ultimately unsustainable. Despite its faults, Blackstone's …