A reprinted lecture by Hanoch Dagan, one of today's best scholars of legal theory, came across my desk the other day. Between Rationality and Benevolence: The Happy Ambivalence of Law and Legal Theory (abstract here) displays two fine features often missing from legal scholarship: It's clear and it's short.
Dagan, who teaches law at Tel-Aviv University, observes that legal theory and indeed the law itself are of two minds when it comes to both law's subjects (all of us) and those who implement the law (judges). On the one hand, the leading general understanding of the law and one sophisticated legal theory assume we're all (nothing but) wealth maximizers. The only thing that stands between our voracious appetites and another's life and property is the coercive powers of state sanctions that accompany the law.
On the other hand, many assume and other legal theory teaches that we're benevolent communitarians who (at least sometimes) wish to work cooperatively for the good of the whole, even at our individual expense.
The former tends to get most of the attention in legal scholarship as well as TV but the latter is even more important. Without the substrate of cooperative behavior, maintenance of the superstructure of the law would become impossible.
Examples of the latter include subjects like family law, close-corporations, partnerships, and the like, which constitute what Dagan calls the "liberal commons." Such legally recognized institutions "encourage people to come together to create limited-access and limited-purpose communities dedicated to shared management." In other words, in the vocabulary of Christianity in the Reformed tradition, we're totally depraved but don't act like it because of God's common grace. Recognition of wealth-maximization and practical altruism are simultaneously present in the law.
Dagan's ambivalence reflects the "limiting constructs" of legal theory. No single approach can do it all. And when folks try to cram all the pegs--round and square--into a single-shaped hole we end up with ideology, not theory. (See my comments about the shortcomings of ideology here.)
In fact, I'll see Dagan's two-fold ambivalence and raise it one. In many of my works of legal theory I've argued that there are three poles or limiting constructs from which we should approach the rules and institutions of the law: the normative, the situational, and the existential. (In chronological order see Mission Possible: A Paradigm for Analysis of Contractual Impossibility (abstract here), Consideration in the Common Law of Contracts: A Biblical-Theological Critique (abstract here), and Principled Pluralism and Contract Remedies (abstract here).) The normative reflects the objective reality of right and wrong and the situational acknowledges that realization of those norms takes place only in a specific context. The existential perspective ties together human recognition and application of those norms through our creation in the image of the One in whom the three are united.
In short, Dagan's is good work of the sort that I hope proves helpful. I also hope that in addition to recognizing law's ambivalence, folks will ask what might unite it. The best answer to that question, I submit, has something to do with our creation in the image of (the Triune) God.
Dagan, who teaches law at Tel-Aviv University, observes that legal theory and indeed the law itself are of two minds when it comes to both law's subjects (all of us) and those who implement the law (judges). On the one hand, the leading general understanding of the law and one sophisticated legal theory assume we're all (nothing but) wealth maximizers. The only thing that stands between our voracious appetites and another's life and property is the coercive powers of state sanctions that accompany the law.
On the other hand, many assume and other legal theory teaches that we're benevolent communitarians who (at least sometimes) wish to work cooperatively for the good of the whole, even at our individual expense.
The former tends to get most of the attention in legal scholarship as well as TV but the latter is even more important. Without the substrate of cooperative behavior, maintenance of the superstructure of the law would become impossible.
Examples of the latter include subjects like family law, close-corporations, partnerships, and the like, which constitute what Dagan calls the "liberal commons." Such legally recognized institutions "encourage people to come together to create limited-access and limited-purpose communities dedicated to shared management." In other words, in the vocabulary of Christianity in the Reformed tradition, we're totally depraved but don't act like it because of God's common grace. Recognition of wealth-maximization and practical altruism are simultaneously present in the law.
Dagan's ambivalence reflects the "limiting constructs" of legal theory. No single approach can do it all. And when folks try to cram all the pegs--round and square--into a single-shaped hole we end up with ideology, not theory. (See my comments about the shortcomings of ideology here.)
In fact, I'll see Dagan's two-fold ambivalence and raise it one. In many of my works of legal theory I've argued that there are three poles or limiting constructs from which we should approach the rules and institutions of the law: the normative, the situational, and the existential. (In chronological order see Mission Possible: A Paradigm for Analysis of Contractual Impossibility (abstract here), Consideration in the Common Law of Contracts: A Biblical-Theological Critique (abstract here), and Principled Pluralism and Contract Remedies (abstract here).) The normative reflects the objective reality of right and wrong and the situational acknowledges that realization of those norms takes place only in a specific context. The existential perspective ties together human recognition and application of those norms through our creation in the image of the One in whom the three are united.
In short, Dagan's is good work of the sort that I hope proves helpful. I also hope that in addition to recognizing law's ambivalence, folks will ask what might unite it. The best answer to that question, I submit, has something to do with our creation in the image of (the Triune) God.
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