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The State’s Private Law and Legal Academia

The State’s Private Law and Legal Academia AbstractThe work of Western jurists has traditionally depended on a symbiotic relationship between the law as promulgated by state authority and law as understood by jurists. Starting with the law laid down by state authority, the jurists have arrived at more general rules, doctrines and principles which were reflected, later on, in the law that state authorities laid down. During the late natural law era, that relationship was undermined when rationalists took as their starting point, not the law in force, but supposedly self-evident principles from which they thought the law could be deduced. With the rise of positivism in the nineteenth century, jurists took the law in force as their starting point, but they tried to interpret it with the deductive and conceptualistic methods of the rationalists. They thus became vulnerable to critics who pointed out why these methods would not work, but who, nevertheless, did not distinguish an attack on these methods from an attack on the work jurists traditionally have done. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

The State’s Private Law and Legal Academia

Gordley, James
American Journal of Comparative Law , Volume 56 (3) – Jul 1, 2008
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Publisher
Oxford University Press
Copyright
© 2008 by The American Society of Comparative Law, Inc.
ISSN
0002-919X
eISSN
2326-9197
DOI
10.5131/ajcl.2007.0020
Publisher site
See Article on Publisher Site

Abstract

AbstractThe work of Western jurists has traditionally depended on a symbiotic relationship between the law as promulgated by state authority and law as understood by jurists. Starting with the law laid down by state authority, the jurists have arrived at more general rules, doctrines and principles which were reflected, later on, in the law that state authorities laid down. During the late natural law era, that relationship was undermined when rationalists took as their starting point, not the law in force, but supposedly self-evident principles from which they thought the law could be deduced. With the rise of positivism in the nineteenth century, jurists took the law in force as their starting point, but they tried to interpret it with the deductive and conceptualistic methods of the rationalists. They thus became vulnerable to critics who pointed out why these methods would not work, but who, nevertheless, did not distinguish an attack on these methods from an attack on the work jurists traditionally have done.

Journal

American Journal of Comparative Law – Oxford University Press

Published: Jul 1, 2008

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