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SecularizationOfTheLaw 5 - 20 Jan 2008 - Main.EbenMoglen
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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. | | | -- JesseCreed - 19 Jan 2008
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| | | I think Jesse has a point, but there is something I am hesitant about. I think there is a danger in speaking of law as something in between philosophy and religion and mathematics because it opens the door to viewing the law as a set of normative principles. To think of law as a sort of multi-disciplinary body of knowledge that is a combination of the aforementioned studies can imply that it has evolved over time through deliberate, deep thought and study. While this may (or may not) be true one case at a time, taken collectively - statutory and common law - law is hardly just a synthesis of these studies. To this end, Holmes gives the example of the way the courts treat larceny, which reflects neither logic nor morality, but the effects of (perhaps imprudent) judicial restraint and tradition. | | |
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< | The original post is, I'm afraid, a historical farrago, or--more precisely--a combination of mostly accurate information with mostly inaccurate generalization. You went rather fast, Kate, and where you exceeded what you knew your guesses didn't pan out. The need to write long should have warned you: any essay of that length needed to be edited, and editing would have taken you to sources, and sources would have shown you that you had more under your hands than you knew. | >
> | The original post is, I'm afraid, a historical farrago, or--more precisely--a combination of mostly accurate information with mostly inaccurate generalization. You went rather fast, Jesse, and where you exceeded what you knew your guesses didn't pan out. The need to write long should have warned you: any essay of that length needed to be edited, and editing would have taken you to sources, and sources would have shown you that you had more under your hands than you knew. | | | So, you are right to feel the influence of Nietzsche in Holmes, but to describe him in that respect as merely "a man of his time," as though Teddy Roosevelt and he were just two boys from Neitzscheland, is more comic than insightful. (HL Mencken said of TR that he "swallowed Nietzsche the way a peasant swallows Peruna, including the cork and the bottle," which is never true of Holmes, whose philosophic influences run more to Hegel, and still more to Chauncey Wright and Charles Peirce.) Holmes thought Freud was nonsense and Marx was rubbish that might yet have its day. | | | Eben, I think you went "rather fast" yourself and attributed Jesse's post to Kate. I edited to split them up more clearly.
-- DanielHarris - 20 Jan 2008 | |
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Indeed you are right. I appreciate both the edit and the correction, which also means that my original remark should be amended. A suggestion about how to avoid this problem is contained in the general GoodStyle recommendations.
-- EbenMoglen - 20 Jan 2008 | | | |
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