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Justice and the War of Reasons

Published online by Cambridge University Press:  09 June 2015

Warren Lehman
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Extract

No one has ever adequately described, either in poetry or in private conversation, what the very presence of justice or injustice in his soul does to a man, even if it remains hidden from gods and man....

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 1 , Issue 2 , July 1988 , pp. 127 - 146
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1988

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References

Many people have made helpful comments or asked difficult questions.I would like especially to thank Patricia Andrews, Richard Bronaugh, Leonard Kaplan, Steven Leahy, Carl Rasmussen, Andrew Segal and Zigurds Zile.

1. Gadamer, H.-G. Truth and Method (New York: Continuum, 1975) at 10–19.Google Scholar

2. Bernard Williams writes of them in Ethics and the Limits of Philosophy (Cambridge: Harvard University Press, 1985).Google ScholarPubMed

3. See Lehman, W. “How to Interpret a Difficult Statute” (1979), Wis L. Rev. 489;Google Scholar Lehman, W. “Rules in Law” (1984), 72 Geo. L.J. 71;Google Scholar Lehman, W. “How We Make Decisions” (1986), Institute for Legal Studies Working Paper, ser. 1, No. 5.Google Scholar

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5. Id. at 10-39.

6. Id. at 274-78.

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8. Aristotle says so explicitly in Nicomachean Ethics (hereafter NE) at 1103b 26.

9. I take up, in “Rules in Law”, supra. n. 3, the question whether rules can tell us what to do. If they cannot, that fact should encourage exploration of the possibility that good action will come out of interior states, as the Greeks say.

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15. See Lehman, “Rules of Law,” supra n. 3, at 1598.Google Scholar That it is misconceived I shall speak of more here, too. Its deep rootedness is suggested by George Fletcher’s recent conference on Kantian legal theory, papers from which have been published at “Symposium on Kantian Legal Theory” (1987), 87 Colum. L. Rev. 421.Google Scholar

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18. Plato, Republic at 439 (Jowett trans., Random House ed., ed. 1937 Vol. 1 at 703).Google Scholar

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22. Id.at 443-44 (Jowett trans., supra n. 18, at 707-08). It is the further insight of Gadamer that practical application of this sort regrounds the alienated moral or legal text. See supra n. 1.

23. Compare Nasr, S.H. Knowledge and the Sacred (New York: Crossroad 1981) at 1. “In the beginning Reality was at once being, knowledge, and bliss....” Prof. Nasr distinguishes between reason and discernment or sapience, but the distinction seems to be that which I describe below as larger and smaller notions of reason.Google Scholar

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25. Which Bergson was later to call the knowledge contained in words. Bergson, H. The Creative Mind (New York: Philosophical Library, 1946) at 37.Google Scholar

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27. For a brief survey of the dispute, see Meeks, W. “Law Versus Grace and the Problem of Ethics” in The Writings of St. Paul (New York: Norton, 1972) at 215.Google Scholar

28. see e.g, “Inaugural Address at Northwestern University” by Stephen Toulmin, The Recovery of Practical Philosophy (Apr. 23, 1987).Google Scholar

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31. Aristotle, NE at 1095b.

32. E.g, Calvin, John Institutes of the Christian Religion (Baillie, J. McNeil, J. & Van Dusen, H. eds., 1960) at 35–37.Google Scholar

33. I take Paul’s contrast between law and faith to be an account of this choice we have in how to lead our lives. Seeking salvation by following the law is an active pursuit contrasted with the faith by which we become passive receptors of grace. Romans 9:30-33. I am here closer to Rudolf Bultmann’s interpretation of Paul (e.g. in Theology of the New Testament (1951) than to Krister Stendahls (“The Apostle Paul and the Introspective Conscience of the West”, in Meeks supra n. 27 at 422-34). We need not throw out an existential interpretation of St. Paul either because Paul, as Stendahl reads him, was not personally anguished by guilt the way Luther was, or because, as Stendahl rightly emphasizes, Paul’s reflections on Jewish law were motivated by the need to explain how Gentile converts were to be integrated into the followershp of a Jewish prophet. It is not necessary to be filled with self-loathing to have the insight Paul obviously had.The resolution Paul claims for himself and promises to others is the result of a surrendering of the pretense of conscious control of the path to salvation; it is a surrender some make more easily than others. It was Paul’s genius that in trying to find a resolution for the place of Gentiles in Christianity he found a set of terms in which to represent the promise of Christianity. The force of that message has, however, always been most powerfully felt by those, like Augustine and Luther, for whom Paul’s understanding was illustrated in anguishing personal experiences

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36. See, e.g., Maclntyre, supra n. 12 at 51.Google Scholar

37. Calvin, Institutes of the Christian Religion, supra n. 32, at 78–81.Google Scholar

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41. Id at 41-43.

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47. Weinrib, E. “Law as a Kantian Idea of Reason” (1987), 87 Colum. L. Rev. 422.Google Scholar

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