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Abstract:
Legal theory has tended to treat the Historical School as a poor relation, but it has important contributions to make. Developed in opposition to the one-size-fits-all form of natural law that eventuated in the Code Napoleon, it attributes law to a Volksgeist, the spirit of a people, as developed in the peculiar historical experience of that people. The original German proponents of the school had trouble explaining the reception of Roman law in Germany, but despite the importation of technical elements from without, a people's laws are in fact part of their culture and of their spiritual heritage as these authors claimed. People have enough in common worldwide so that some elements appear in almost all legal systems (hence what the Romans called jus gentium) but one size does not fit all, and the laws of different peoples are subject to historical change as other aspects of their culture are. Deliberate legislative intervention is not always necessary, and not always sufficient to bring such changes about.

Abstract:
This article argues that there is a significant metaphysical difference between men and women that is not reducible either to biology or to social constructs. In view of that difference, the author criticizes the Massachusetts decision giving constitutional status to same sex marriage, but also criticizes the more common argument against such marriage, because it relies too much on biology, too little on metaphysics.

Abstract:
This paper is part of a symposium on the special responsibilities of government lawyers. Where other papers in the symposium, especially that of Professor Bruce Green, 9 Widener J. Pub. L. 235, claim that government lawyers, unlike private lawyers, have an obligation to pursue justice and refrain from unsupported claims or defenses, this paper argues that private lawyers have the same obligation. Private lawyers, in view of such rules as Rule 11 of the Federal Rules of Civil Procedure and Rule 3.1 of the Model Rules of Professional Conduct, as well as the oath they take on admission to the bar, have no more right than government lawyers to pursue positions that lack evidentiary and legal support, or positions that seem to them unjust.

Abstract:
Justice is the virtue we practice by giving people what is due them. Therefore, there is a problem of assignability when we consider an unjust social order: What is due from an individual beneficiary of that order to an individual victim? That question is answered by the concept of social justice: What all of us individually owe to each individual victim of the institutions now in place is our best efforts to reform those institutions. The first half of this paper analyzes the traditional arguments for and the conservative arguments against social justice as the answer to this problem of assignability. Within that framework, it highlights the need for combating and remedying injustices in society even though different, unknown, or more difficult problems may arise from doing so. The second half of the paper enters into an eschatological reflection on the principles of social justice from a Christian liberation theology perspective. It concludes that the demands of social justice from this Christian perspective are two-fold. First, that the members of every class have enough resources and enough power to live as befits human beings, and, second, that the privileged class be accountable to the wider society for the way they use their advantages.

Abstract:
This article describes the origin and sources of the author's jurisprudential doctrine, and his adoption of liberation theology as a way of reconciling Sociological Jurisprudence with the philosophy of history. It argues that the pursuit of justice is eschatologically validated even though its historical fruition is problematical. It goes on to discuss the working out in legal practice of the liberationists' call for a preferential option for the poor.

Abstract:
Drawing on Jacques Maritain's doctrine of Knowledge through Connaturality, and on other authors including David Hume and Edmond Cahn, this article argues that judgments of right and wrong are arrived at primarily through immediate discernment, and only secondarily through the application of general principles. It is possible, therefore, for lawyers and clients to arrive at agreement on how to handle their cases, even though they do not agree on the general principles that apply.

Abstract:
Today, on the whole, mainstream theology rarely invokes concepts of law. This paper argues that important theological concepts have an inescapable juridical dimension that must be recognized and addressed if theological concepts are to be rightly understood. Drawing from secular law, it divides Catholic theological law into the three traditional separate categories of law: normative, constitutive, and epistemic. It then applies this juridical analysis to the polity of the Church, the validity of the sacraments, the magisterium, the status of non-Catholics, and redemption. It concludes, noting that while one can lead a good Christian life without paying attention to the legal analysis behind the law and teaching of the Catholic Church, such analysis is especially important today given the need for relating the unique claims of the Catholic Church to the requirements of a growing ecumenical and interfaith dialogue.

Abstract:
Common moral judgments on many types of clandestine warfare, referred to by some as terrorism, seem to be more nuanced and less severe than our current legal judgments. This paper begins by offering a detailed typology of clandestine operations and measures to combat them, a few general reflections on the laws of war, and a critique of those laws as they now stand. It then proposes a substantial revision of the laws which govern clandestine warfare based on four basic principles of the laws and the morality of just war: the independence of jus in bello from the jus ad bellum; the condemnation of perfidy; the immunity of noncombatants from attack; and quarter for lawful combatants when captured. With these four basic principles in mind, the paper concludes with a model "International Draft Convention on Clandestine Warfare" and a model "Draft Federal Act Concerning Armed Organizations".

Abstract:
The law profession is unique in the scope of the mandate it gives those within it to intervene in other people's affairs. As a result of this unique power of intervention, lawyers encounter a number of unique problems. This paper elucidates upon, and applies, the moral standards and intuitions to be used in approaching these problems. It argues that we should form our consciences in dialogue with our clients and that once they are formed we must follow them and limit our representation accordingly. If lawyer and client cannot agree on an agenda with which both are comfortable, the lawyer should withdraw. In any event, no client has the right to the assistance of a lawyer- or anyone else- in perpetrating an injustice.

Abstract:
Statements involving knowledge, intent, and the like may often be interpreted either de re (about a thing) or de dicto (about a statement). For instance, "A knowingly took B's car" can mean either "A knowingly took a car that turned out to be B's," the de re interpretation, or "A knowingly caused it to be the case that he took B's car," the de dicto interpretation. This paper takes up twelve cases whose outcome depends on which interpretation one gives to a governing principle. It suggests that since the two alternative interpretations are equally supported by the applicable language policy considerations must be brought in to resolve the cases.

Abstract:
A common view of our present society is that it is largely egalitarian and classless. This paper proposes that this conception of an egalitarian and classless society belies reality. It argues that there is a dominant class of leaders in government, labor, and business who are characterized by their organizational skills and their technical expertise, and who have more in common with one another that they have with the respective constituencies in whose name they exercise power. It further argues that this class, in effect, is able to wield power to control the structure of society and the legal system to closely match their experiences and concerns without adequate regard for those more vulnerable than themselves. It concludes, after many examples of class biases in the law, by reflecting on how protection of the rest of society through legal reform is a positive moral duty which all of those in the controlling class must embrace.

Abstract:
The intersection of church and state today differs greatly from the symbiotic relationship of the past. This paper traces and critiques the advent and development of the Christian-government relationship down through the centuries to its current form. It finds that, and discusses how, current Christendom is split between a High Church attitude, which depicts the Church as above the state and outside of the state's limitations, and an Erastian approach, which views the Church as in dialogue with the state and as subject to the same limitations as other social institutions. Finally, the paper discusses the key differences between a "pluralist Christendom" understanding of our traditional freedoms and the secularist view of the same freedoms. It suggests the role which a Christian civil magistrate ought to play in light of such key differences. Pluralist Christendom allows for proper restraints to be enacted on the basis that freedom serves a transcendent purpose, whereas, secularists lack this central purpose and, ultimately, are placed on unsteady ground between extreme individualism and extreme collectivism. Accordingly, the Christian civil magistrate has a role to play in firmly grounding ordered non-vacillating principles of liberty into society.

Abstract:
This paper analyzes particular passages in Holmes's famous lecture, and notes important inconsistencies and failings in his approach. After arguing strongly that moral considerations should not enter into legal judgments, he criticizes legal judgments in the light of moral considerations. After defining law as a prediction of what the courts will do, he seems to criticize courts for getting the law wrong in their decisions. His advice to learn the legal profession by studying law from the standpoint of a bad man leaves out of account the numerous potential clients who wish to be law abiding citizens and to seal with their associates in accordance with law. The paper recognizes the importance of Holmes's contribution, but suggests regarding it as a set of fragmented views from different standpoints rather than a coherent view of the whole legal system.

Abstract:
Engel v. Vitale was a landmark case which marked a jurisprudential shift in the constitutional meaning of the Establishment Clause. This paper, written in the aftermath of this important case, reflects on, and contrasts, England's historical establishment of the Church with historical nonsectarianism in the United States. After analyzing the role which the tripartite Protestant-Catholic-Jew nonsectariansm played in society before Engle, the paper suggests that nonsectarianism served the beneficial purpose of directing the whole institutional structure of society toward the last end of human beings. With the passing of nonsectarianism, the nation is left with the problem of accurately and adequately institutionalizing the defining national religious consensus that we, as a nation, continue to feel. This paper concludes that, resonant with the religious consensus and spirit of freedom in brotherhood which permeate this nation, the old system of nonsectarianism can best be replaced by a system of dialogue, based on mutual understanding and respect rather than on agreement.

Abstract:
In the long history of Christendom, an "Erastian" view of the relation between Church and State has existed in tension with a "High Church" view. This paper explores the current state of our current shopworn Erastian-like church-state nexus and considers what forces may bring a more relevant and effective institutional High Church witness into being. The fact that the United States has an Erastian-like church-state relation is borne out in a line of cases involving the judicial resolution of intra-church disputes and the effect to be given the mandates of ecclesiastical authority. It is also borne out in legislative and judicial treatment of tax exemption and state support for church-connected activities. This current Erastian church-state view works insofar as it guarantees a number of essential philanthropic services for the public, but a shift to a High Church method of critiquing society would be a more effective witness insofar as it would draw more attention to the largest societal problems and the most needed services.

Abstract:
Legal pronouncements to the effect that such and such is the case can be divided into three categories, which the paper calls normative, constitutive, and epistemic. The paper defines these three legal categories, explores examples of each of in the law of the state, and then examines church pronouncements under the same categories to see what light the analogy of secular law can shed on them. The Church's assertions of authority regarding faith and morals are epistemic in nature. Epistemic pronouncements by authority, whether in Church or state, are binding on anyone who is not better informed than the author, but generally not on anyone who is. The paper suggests that this principle can be used to evaluate the binding force of different pronouncements of the magisterium.

Abstract:
God has no use for procedural rules since He knows the full truth and is able to exercise absolute justice simultaneously alongside complete mercy. This paper discusses the religious significance of legal rules of procedure in light of this truth. It finds that since we, unlike God, are inherently fallible, we are forced to implement procedures in the legal pursuit of our goals of truth, justice, and mercy. These procedures remain imperfect in implementing these goals, as compromises must often be made between competing values such as mercy on one hand and justice on the other. Nevertheless, though legal procedure is imperfect, it is meant to achieve these goals as best we can. It is important for us to avoid treating procedure in such a way as to turn it into an end rather than a means. God calls us to emulate Him by using or resisting procedure in a way that comports with human dignity.

Abstract:
England's historical and current synthesis of Church and State differs greatly from other European and American experiences. It contrasts sharply with the path taken by most states, which chose to cope with religious pluralism by privatizing religion and by trying to base public life on secular views of human nature. This paper reviews the unique inception, and continuance, of the church-state throughout English history. It also reviews the unique manner in which England chose to deal with religious pluralism while maintaining its established church. After reviewing the English experience of establishment of religion, this paper concludes that the total wall of separation which the United States has placed between Church and State is neither necessary nor desirable. Allowing for some integration of Church and State firmly incorporates the universality of many human concerns into an otherwise secular culture and safeguards against denial of the transcendence of the human person.