38 Pages Posted: 30 Mar 2006
Christian legal thinkers have shaped and formed Western law from the latter days of the Roman Empire until nearly our own age. Historically, Christianity is of immense importance to the shape and substance of Western law. However, in the United States today, Christian legal scholars who seek to apply self-consciously Christian norms to the resolution of legal problems are accustomed to thinking that their work is marginalized. Even so, American Christians who take their faith seriously, who see it as relevant to questions of law, should take up the task of explaining exactly how it is relevant, how it can help to resolve pressing legal problems. Harold Berman recently observed that "[w]ith rare exceptions, American legal scholars of Christian faith have not, during the past century, attempted to explain law in terms of that faith."
This article examines the three great antinomies - that is, contradictions within the law - of modern jurisprudence and suggests how Christian jurisprudence might help to resolve them. Three antinomies have come to shape much modern thinking about the nature and function of law: (1) Law consists of commands backed by power, force, and external compulsion, and questions concerning the rightness or justice of those commands are not to be considered when determining whether a particular act of sovereign will should be considered to be law. (2) Law and morality should and must be viewed as existing as separate and apart from one another, such that the moral content of a particular sovereign decree is not used in determining whether to count a particular sovereign decree as law. (3) In determining whether a particular command, rule, or principle should count as law, one is allowed only to consider its formal source, irrespective, once again, of its content.
These are three antinomies in legal analysis that the average lawyer works with every day and that the average student of jurisprudence takes for granted as part of the foundation of her or his view of the legal world. They are antinomies because they seem to be at war with our instincts as to what should or should not count as law. Indeed, they are at war with other deeply cherished elements of the legal order. Law should be about justice. Power should be in the service of justice. Law and morality should not occupy separate spheres. Law should not only regulate conduct, but should seem to be inherently good.
The author contends that contemporary jurisprudence, by which he means the legal positivism that has come to prevail especially in the Anglo-American academy, embodies within itself these serious contradictions - "antinomies" - which can best be resolved by paying studious attention to some of the teachings of modern Christian jurisprudes. In contrast to the great antinomies of positivism, Catholic social thought emphasizes the integral connections between justice and law; the inseparability of law from morals and values; and the need to ground the validity of law not in a formal analysis of state authority but in human nature itself.
Keywords: Legal history, law and religion, Catholic social thought, jurisprudence
Suggested Citation: Suggested Citation
Reid, Charles J., The Three Antinomies of Modern Legal Positivism and Their Resolution in Christian Legal Thought. Regent University Law Review, Vol. 18, p. 53, 2005; U of St. Thomas Legal Studies Research Paper No. 06-07. Available at SSRN: https://ssrn.com/abstract=893685