I am not sure if this discussion belongs under a new topic thread or a comment to the class notes. Since it's rather long, I decided to open up a new thread.
I want to discuss the secularization of the law, which, in my opinion, is at the heart of Holmes's discussion. It seems that Holmes is putting the nail in the coffin on a theological conceptualization of the Law to form something informed by both morality and logic, yet distinctly different from either - and therefore neither. It at once falls short of society's moral limits, yet surpasses the constraints of logic. This intermediary role that the law plays between morality and logic is what most people call "policy" - that is, some result influenced by our cultural values (i.e. morality) and empirical analysis (i.e. logic). The reason why I have termed this delicate balance between the two poles the "secularization of the law" is that either extreme represents a theological category. Put differently, both morality and logic rest on abstract principles or dogmas usually without comprehending the practical considerations involved. |