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Unpublished Paper
Introduction to the Theory of Law: History and the Unity of Legal Things
ExpressO (2013)
  • John Lunstroth
Abstract
I propose a general theory of the law. I begin with the history of the western legal tradition. When tracing laws, or legal things, over long periods of time it is apparent that the positivist theory is inadequate to describe law. Natural law similarly fails to explain what is seen in the historical record. I suggest an historicist theory best describes the law when seen as a conceptual and historical whole. I then identify a fundamental break in the historical record, the Enlightenment, when the scientific worldview became dominant. The scientific gaze splits nature (including law) into two parts, moral and scientific, and it holds the moral in low esteem. Accordingly, legal positivism only recognizes the scientific part. Positive laws are the most impermanent kinds of legal things in the historical record; whereas such legal things as consent, constitution, and just war persist over very long periods of time. If such a legal thing is analyzed in the scientific age I argue we must re-unite it with its moral part to fully understand it (the Unity Thesis). It is only in the reunification that ideology/critique can be neutralized, the dialectic resolved. The US Constitution is an Enlightenment legal thing. Positivist ideology causes us to see it as democratic, when in fact it is oligarchic; to think everyone has equal rights, when in fact right is possible only with power. Democracy and rights lead to tension between the rich and poor, whereas a vision of the state unified with the Common Good may lead the few and the many to cooperate for that Good.
Keywords
  • theory of law; jurisprudence; history of law; constitutionalism
Publication Date
February 26, 2013
Citation Information
John Lunstroth. "Introduction to the Theory of Law: History and the Unity of Legal Things" ExpressO (2013)
Available at: http://works.bepress.com/john_lunstroth/5/