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The Mechanics of Perfection: Philosophy, Theology and the Foundations of American Law

ON PHILOSOPHY IN AMERICAN LAW, F.J. Mootz, ed., Cambridge University Press, 2009

9 Pages Posted: 1 Sep 2007 Last revised: 5 Aug 2008

Larry Catá Backer

Pennsylvania State University, Penn State Law

Abstract

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.

Keywords: jurisprudence, constitutional law

JEL Classification: K19, K40

Suggested Citation

Backer, Larry Catá, The Mechanics of Perfection: Philosophy, Theology and the Foundations of American Law. ON PHILOSOPHY IN AMERICAN LAW, F.J. Mootz, ed., Cambridge University Press, 2009. Available at SSRN: https://ssrn.com/abstract=1011328

Larry Catá Backer (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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