The Mechanics of Perfection: Philosophy, Theology and the Foundations of American Law
Larry Catá Backer
Penn State Law
ON PHILOSOPHY IN AMERICAN LAW, F.J. Mootz, ed., Cambridge University Press, 2009
Americans have been obsessed about the mechanics of perfectibility. Perfectibility is built into the constitutive documents of the American Republic. The expression of that perfection is Law, and Government provides the means. The mechanics of perfectibility lies in philosophy and theology. Through these mechanics Americans can discern the spirit of perfection - as God or as the genius of the American community made manifest. The essay considers these notions in the context of two cases, Swift v. Tyson (1842) and Erie Railroad Co. v. Tomkins (1938), which provide both the antipodes of American conceptions of the sources and hierarchy of law, and also suggest the mechanics of a mandatory perfectibility in American. But the judge is not the only intermediary between perfection and its expression in law. The essay suggests the way the political branches also seek the role of privileged (and uniquely privileged) intermediaries between the people and perfection. The essay ends with a consideration of the value of the theology of faith and reason in the elaboration of American jurisprudence.
Number of Pages in PDF File: 9
Keywords: jurisprudence, constitutional law
JEL Classification: K19, K40Accepted Paper Series
Date posted: September 1, 2007 ; Last revised: August 5, 2008
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