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Articles 1 - 7 of 7
Full-Text Articles in Jurisprudence
Finding A Footing: A Theological Perspective On Law And The Work Of Joseph Vining, John L. Mccausland
Finding A Footing: A Theological Perspective On Law And The Work Of Joseph Vining, John L. Mccausland
Villanova Law Review
No abstract provided.
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan
Working Paper Series
This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …
Public Law, Private Law, And Legal Science, Chaim Saiman
Public Law, Private Law, And Legal Science, Chaim Saiman
Working Paper Series
This essay explores the historical and conceptual connections between private law and nineteenth century classical legal science from the perspective of German, American, and Jewish law. In each context, legal science flourished when scholars examined the confined doctrines traditional to private law, but fell apart when applied to public, administrative and regulatory law. Moving to the contemporary context, while traditional private law scholarship retains a prominent position in German law and academia, American law has increasingly shifted its focus from the language of substantive private law to a legal regime centered on public and procedural law. The essay concludes by …
Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan
Differentiating Church And State (Without Losing The Church), Patrick Mckinley Brennan
Working Paper Series
There is an ongoing debate about whether the U.S. Constitution includes -- or should be interpreted to include -- a principle of "church autonomy." Catholic doctrine and political theology, by contrast, clearly articulated a principle of "libertas ecclesiae," liberty of the church, when during the nineteenth and early twentieth centuries the Church differentiated herself from the state. This article explores the meaning and origin of the doctrine of the libertas ecclesiae and the proper relationship among churches, civil society, and government. In doing so, it highlights the points at which church and state should cooperate and the points at which …
“What’S The Matter With You Catholics?” Soundings In Catholic Social Thought: Traditions In Turmoil. By Mary Ann Glendon, Patrick Mckinley Brennan
“What’S The Matter With You Catholics?” Soundings In Catholic Social Thought: Traditions In Turmoil. By Mary Ann Glendon, Patrick Mckinley Brennan
Working Paper Series
This review essay of Mary Ann Glendon's Traditions in Turmoil (2006) explores such topics as tradition, moral discourse, human rights, subsidiarity, natural law, the common good, civil society, and constitutional and statutory interpretation. In doing so, it provides an introduction both to Catholic social thought and to the thought of Bernard Lonergan.
Locating Authority In Law, And Avoiding The Authoritarianism Of 'Textualism', Patrick Mckinley Brennan
Locating Authority In Law, And Avoiding The Authoritarianism Of 'Textualism', Patrick Mckinley Brennan
Working Paper Series
Much modern jurisprudence attempts to move the locus of authority away from people with authority in order to locate it instead, for example, in rules or texts. This article argues that authority, wherever it exists, is a quality of the actions of persons. The article mounts this argument by showing how Justice Scalia's textualism is the legal analogue of a largely discredited form of "Christian positivism," one that leads to a form of authoritarianism. The article goes on to argue that authorianism can be avoided only by individuals' and their communities' becoming authoritative, including in the making and enforcement of …
Jesus’ Legal Theory—A Rabbinic Interpretation, Chaim Saiman
Jesus’ Legal Theory—A Rabbinic Interpretation, Chaim Saiman
Working Paper Series
This article locates the ancient debates between Jesus and the Talmudic rabbis within the discourse of contemporary legal theory. By engaging in a comparative reading of both Gospel and rabbinic texts, I show how Jesus and his rabbinic interlocutors sparred over questions we now conceptualize as the central concerns of jurisprudence. Whereas the rabbis approach theological, ethical and moral issues through an analytical, lawyerly interpretation of a dense network of legal rules, Jesus openly questions whether law is the appropriate medium to structure social relationships and resolve interpersonal conflicts. Through an examination of Talmudic sources, this paper argues the controversies …