Legal History Commons^™

On 'Positivism' And 'Legal Rational Authority', John M. Finnis

Journal Articles

This Article critiques Anthony Kronman’s book Max Weber, which provides an interpretation of Weber’s social theory of law concerning positivism and legal rational authority. In particular, the three premises of Kronman’s thesis regarding social theory are considered and their weaknesses are explained. Through this critique, the Author argues that no good reason has been presented to accept that Weber’s positivist theory is of value.

David Hoffman's Law School Lectures, 1822-1833, Thomas L. Shaffer

Journal Articles

The Baltimore lawyer and teacher David Hoffman (1784-1854), the father of American legal ethics, was also the first of the systematic American legal educators. He held one of the first appointments in this country as a university law professor (at the University of Maryland, 1814-43) and wrote the first American outline of the study of law. Joseph Story, in a contemporary review of the 1817 Course, called Hoffman's work "an honour to our country[,] . . . by far the most perfect system for the study of the law that has ever been offered to the public. " Chancellor James …

The Basic Principles Of Natural Law: A Reply To Ralph Mcinerny, John M. Finnis, Germain Grisez

Journal Articles

In the preceding volume of this journal, Prof. Mclnerny criticized certain theoretical positions of Finnis and Grisez as well as their interpretation of St. Thomas. In the present article Finnis and Grisez reply that Mclnerny's criticisms lack cogency, because he has misunderstood their theories, judged their exegesis by his own different interpretation assumed gratuitously to be correct, and mixed philosophical and historical criticism in a way which helps to clarify neither the problems of ethical theory nor those of Thomistic exegesis.

The Problem Of Unjust Laws, Charles E. Rice

Journal Articles

John Finnis has contributed most significantly to our understanding of how "practical reasonableness"' has affected creation and evaluation of human law. The main objective of a theory of natural law is to show how sound laws are to be derived from principles based on reason. It is true, as Finnis points out, that "the affirmation that 'unjust laws are not law' . . is [generally] a subordinate theorem" of natural law theory. Nevertheless, the experience of the past half century requires that we examine seriously, as Finnis has, the moral obligation of the unjust law.

Thurgood Marshall And The Forgotten Legacy Of Brown V. Board Of Education, Kenneth F. Ripple

Journal Articles

On May 17, 1979, the United States celebrated, with relatively little public ceremony, the twenty-fifth anniversary of Brown v. Board of Education. Two years earlier, another anniversary was celebrated even more quietly as Thurgood Marshall, the principal architect of the school desegregation litigation, celebrated his first decade as a justice of the Supreme Court of the United States. Anniversaries are traditionally a time both of celebration and reflection. These particular anniversaries are appropriate occasions for celebration since each marks an important milestone in American life. At the same time, both present a unique opportunity for reflection upon and reassessment of …

Some Problems In Administration Of Justice In A Secularized Society, Thomas L. Shaffer, William Mclennon, Lois G. Forer

Journal Articles

In our complex society, the role of the lawyer has assumed unprecedented significance. People turn to the law for answers to all of the new questions involving social, moral, and ethical considerations, as well as for answers to many of the old problems which were not typically perceived as legal issues. Law students, faculty, lawyers, judges, the clergy, and even anthropologists-all of us need a much more sensitive and deeper understanding of a wide variety of problems. We must continually question the rightness of the law and the fairness and decency with which we treat all of the people who …

Rhetorical Styles On The Fuller Court, Walter F. Pratt

Journal Articles

"Formalism" is the label regularly used to describe judicial opinions of the late nineteenth century. The label is descriptive when used in contradistinction to "instrumentalism." Use of the label, however, has certain drawbacks. For example, there is little objective or empirical evidence to support the application of the two antithetical terms. In addition, a single term cannot reflect whatever diversity of styles may exist among the judges of a single court. This article describes the results of an attempt to rectify those two drawbacks and to determine whether the Justices of the Supreme Court at the turn of the century—while …

State Sovereignty--A Polished But Slippery Crown, Kenneth F. Ripple, Douglas W. Kenyon

Journal Articles

During the past decade, the Supreme Court has decided two notable cases which have had, it is certain, the effect of greatly enhancing both the theoretical and the practical significance of the tenth and eleventh amendment-based concept of "state sovereignty." As a consequence, there has been an acceptance, at least in the "conventional wisdom," of the proposition that the star of "state sovereignty"—long dulled since Mr. Justice Stone's famous remark in United States v. Darby—is now on a steadily ascending course at the hands of a Court clearly concerned about restoring a sense of balance in "Our Federalism." Analysis—and prognostication—in …

Hope In The Life Of Thomas More, Thomas L. Shaffer, Stanley Hauerwas

Journal Articles

The seduction of power is as perennial as the threat of power spurned. Power is a medium for good and evil. Lawyers and politicians and their victims—Nixon and his cronies, for examples—come and go; but the moral problems of how to use power, how to live with it and leave it behind, remain.

One way to look at the moral problem of power is to ask how a virtuous person uses power, and lives close to power, without losing the sense of self which is necessary to negotiate the temptations of power. We propose to ask that question with respect …

Advocacy As Moral Discourse, Thomas L. Shaffer

Journal Articles

Advocacy at its best is a form of reconciliation. It reconciles the advocate with those whose champion he proposes to be. It reconciles the advocate with his hearers. It reconciles the person whose cause is advocated with the persons who hear advocacy. It brings to community life a new sense of the interests of those the community neglects. It seeks to make things better. It is moral discourse.

This article will examine advocacy in two contexts. The first is advocacy to an institution, conducted in the name of justice or the welfare of the community; one might call this first …

Learning The Law-Thoughts Toward A Human Perspective, Thomas L. Shaffer, Robert S. Redmount

Journal Articles

The history of American legal education is notable for a sparsity of ideas on how to convey learning about law. There has been even less focal understanding of what learning is and what it takes to establish a process which will prepare lawyers for their profession. A window on this history was provided in historical survey by Alfred Z. Reed in 1921 and, more recently, by Professors Preble Stolz and Calvin Woodward. It is principally their accounts of eighteenth and nineteenth century developments that we here briefly integrate and summarize. The perspective-a consideration of legal education in terms of social …

Some Professorial Fallacies About Rights, John M. Finnis

Journal Articles

Why do students usually get into a muddle when analysing legal situations in Hohfeldian terms? What is the use of trying to straighten out the muddles, and of teaching Hohfeldian analysis at all? The short answer to the first question is that Hohfeld was clear-headed in applying his scheme, but because of his writing style and his odd views about definition was regrettably gnomic about the meaning and inter-relations of the terms of that scheme. The short answer to the second question is that clear-headed familiarity with Hohfeld's scheme can bring with it an awareness of the questions regularly begged …

Reflections On Professor Chroust's The Rise Of The Legal Profession In America, Donald P. Kommers

Journal Articles

A review of Anton-Herman Chroust’s 1965 study on lawyers and the status of the legal profession in the United States from early colonial days to 1830.

Though the review praises the wealth of facts and detail in the work it argues that Chroust is more interested in glorifying the early American legal profession rather than analyzing the conditions for its growth. It also contends that Chroust does not organize his material according to a coherent theory or conceptual scheme. The review, in addition, asserts that Chroust focuses too much on the pious and self-righteous rhetoric lawyers at the time, assuming …

Professor Kurland, The Supreme Court And Political Science, Donald P. Kommers

Journal Articles

IN A SYMPOSIUM held at the Notre Dame Law School on February 29, 1964, on several constitutional amendments designed to limit the power of the Supreme Court, Professor Philip B. Kurland of the University of Chicago Law School read a terse and delightfully witty paper in which he compared the Supreme Court to Caesar, sieged on the one side by the modem forces of Brutus, and championed on the other side by the contemporary Mark Antonys. There was no doubt in Professor Kurland's mind that the efforts of conspirators like the Council of State Governments, not to mention its less …

The Right To Vote And Its Implementation, Donald P. Kommers

Journal Articles

The quest for political equality has been a major theme of American history. Indeed, since 1789, the American political system has undergone steady progress toward increasing democratization.' Slavery was abolished in 1865. The right to vote is no longer limited by restrictions based on property, race, color, or sex. Since 1913 United States senators have been elected by the people. Political equality is afforded to the citizens of each state through the equal protection and due process clauses of the fourteenth amendment. And the operation of the electoral college, originally intended to house a political elite, has been so modified …

The Straw Man Of Legal Positivism, Thomas F. Broden

Journal Articles

The typical view of many lawyers, philosophers, theologians and other thoughtful persons toward a so-called school of jurisprudence generally known as legal positivism is one of condemnation. According to this typical view legal positivism is a well developed philosophy of law the main tenets of which are that might makes right and that law and state sovereignty are absolute and not subject to independent moral evaluation. Needless to say this assumed jurisprudential view is roundly indicted, deplored and declaimed against with vigor and venom. We are warned that legal positivists are insidious termites threatening the very foundation of our law, …

Due Process And Social Legislation In The Supreme Court--A Post Mortem, Robert E. Rodes

Journal Articles

Nowadays, there is no more discredited era in our judicial history than that represented by such cases as Lochner v. New York.' During this era, we are told, our ancestors were so benighted economically as to embrace economic principles incapable of producing the good life, and so benighted judicially as to read their economics into the Constitution. We have barely left behind us the bulk of the advocates and judges whose role in history it was to slay the giant laissez-faire, so it is not surprising that we should have no picture of their adversary but the dne that was …

Our Forgotten Finding Of Fact, Clarence Emmett Manion

Journal Articles

It has been my happy experience during the past half dozen years to be closely and professionally associated with three members of this association, Mr. Tracy Griffin, Mr. Holman and Mr. A. Schweppe. In my judgment these are three of the most representative, the most erudite and most patriotic members of the Bar to be found anywhere.

If they are representative of the Washington State Bar Association, then indeed it is a great honor for me or anybody else to have the privilege of addressing you, and I so regarded it and so accepted the invitation.

I have studied your …

Founding Fathers And The Natural Law: A Study Of The Source Of Our Legal Institutions, The, Clarence Emmett Manion

Journal Articles

Where did the Founding Fathers get the principles upon which they established our government? What was the source of their faith? The bedrock of their convictions? What was the political evolution of our Constitution? The legal philosophy of our Bill of Rights? The discussion of these questions by Dean Manion is timely for it is necessary now to make soundings and take bearings if the Ship of State is to continue on its true course. Whereas the Revolution of 1688 brought the doctrine of parliamentary sovereignty to England, the American colonists resisted that doctrine and adhered to the true natural …

Some Legal Aspects Of American Sovereignty, Clarence Emmett Manion

Journal Articles

The advocates of a post-war world security organization are squarely up against the question of "sovereignty." Those who have specifically criticized the suggestion have done so for the reason that it does not go far enough to accomplish its purpose. They contend that the word "sovereign" should be lifted out of all such proposals for the reason that its inclusion will neutralize the effectiveness and destroy the continuity of the proposed association. If through the instrumentality of a treaty, or an executive agreement made pursuant to a joint Congressional resolution or otherwise, the United States government may suddenly take on …

American Philosophy Of Law, Clarence Emmett Manion

Journal Articles

America’s philosophy of law is a rich heritage sculpted by the American Revolution. The bold aspirations of the Declaration of Independence, which advances notions of inalienable, God-given rights find more mild-mannered forms in our Constitution. However, this prevailing concept is what makes our legal and political environment distinct from our English forebears.

Military Action In Labor Disputes, William Burns Lawless

Journal Articles

Generally, we may say that the executive power to initiate military action is commensurate with the emergency. If the situation is grave, the civil courts may be closed and a military commission appointed by the governor to substitute for the judiciary. In all events the power is potentially a vast one. Discriminate, ly applied it bargains a temporary suspension of rights for a restoration of law and order.

Administrative Boards And Delegation Power, William Burns Lawless

Journal Articles

With the growth of American federalism and the passing of the doctrines of laissez faire as axioms of economic and political legal theory, the Congressional function magnified. Throughout the last decade the multiphased problems of Congress has necessitated the creation of administrative commissions to perform-the policies of the legislature. Congress continues to declare the law and determine the legal principle to control in given cases. In the same breath of legal creation it goes farther and provides for an administrator or commission to vitiate the doctrine set-out. The transfusion of power from the national legislature to the administrator promotes sensitive …

A Lawyer Looks At Liberty, Clarence Emmett Manion

Journal Articles

The Law has been defined as "The Perfection of Human Reason." This, of course, is a highly idealized definition. The Law often falls short of perfect reasonableness. Nevertheless reason and logic constitute the warp and woof of the whole fabric of our jurisprudence. In the strict determination and application of the Law, emotion-the natural enemy of reason-plays not part at all. In the courtroom, oratorical pyrotechnics are seldom permitted to obscure the real points that are at issue in a particular case. The trial of a lawsuit is predicated upon the pleadings and the art of formal pleading is as …

Reviewing Judicial Review, Clarence Emmett Manion

Journal Articles

Address of Clarence E. Manion, Professor of Law at Notre Dame University School of Law, delivered at the mid-winter meeting of the Indiana State Bar Association January 16, 1937.

Reorganization Of The Federal Judiciary, Thomas Frank Konop

Journal Articles

This article examines the controversy the Supreme Court have declaring unconstitutional several acts of Congress by striking social and beneficial laws from the statute books. The Supreme Court in effect told the American people that because of the Constitution their representatives could not pass these laws. It is the Supreme Court that is usurping the power of Congress and the President. It is the Supreme Court that has been destroying laws passed by Congress for a better life, more liberty and equality; social justice, and pursuit of happiness of one hundred thirty million people. This article favors the President's proposal …

The Constitutionality Of New Deal Measures, Clarence Emmett Manion

Journal Articles

In this article, Clarence Manion warns that to honor the Constitution's form but not its substance is to essentially destroy the document. He opines that "Regulation of persons and things is never justified nor justifiable as an end in itself. Regulation for the sake of regulation is paternalism; but regulation as the only means for individual protection is a bulwark of our traditional American liberty. Regulation finds its only justification in the proof of the fact that it is a necessary means for adequate protection of the citizen's rights.

A Great Opportunity For Lawyers, Thomas Frank Konop

Journal Articles

The lawyer-statesmen who drafted our Constitution had a greater task. The lawyer-statesmen who piloted us through a Civil War, through a Reconstruction Period, and through the World War, had equally difficult problems. Will the lawyer of today assume a leadership? Will he assume a duty and a responsibility for service? Will he heed an op- portunity and thus bring a lasting tribute to the profession?

What Will Become Of Prohibition, Clarence Emmett Manion

Journal Articles

Because of the substantial minority support for Prohibition and the Eighteenth Amendment, this article suggests that it would difficult, if not impossible, to repeal the amendment despite the fact that 3 in 5 Americans would support its repeal. The article looks at potential options of lessening the impact of the Eighteenth Amendment, including removing penalties for it, repealing State enforcement acts, and forbidding nullification of search warrant requirements. Finally, it looks at the quality of liquor as a solution to an "unusually interesting" and "ultimately worthwhile" problem.

History Of The Notre Dame College Of Law, Thomas Frank Konop

Journal Articles

In the summer of 1868 the Board of Trustees of the University passed a resolution "for the opening of a course in law at Notre Dame." At that time there were very few law schools in the country and the profession was almost wholly recruited from the law-offices. As a matter of fact there was great doubt among the lawyers at that time as to the advisability and the possibility of acquiring training for the bar at a university. There were even prejudices at that time against the study of law at law schools. It was during such doubts and …