Document Type

Book Review

Comments

Book Review: Analysis of Knowledge and Valuation, 61 Harvard Law Review 1469 (1948)

Abstract

Most of our judges and law professors spend a large part of their lives
justifying or criticizing various human arrangements known as legal
rules or decisions, and yet when the circuit of their tasks is interrupted
by an inquiry into just what it is that they are doing when they justify
or criticize, they are apt to react with more heat than light. For the
intellectual fashion of our times requires them to hold that justification
and criticism are matters of personal emotion and uncertainty, while the
dictates of their profession require them also to maintain that what they
are doing has a firm basis in certain and objective truth.

Faced with the modern version of Samson's riddle - how to draw
the honey of objective certainty from the lions of passion and emotion
our jurists have offered three divergent answers, none of which can
command much respect. Some have denied that there can be any certainty
or objectivity in law, but the most energetic of these, upon donning
judicial robes, has had to profess an appeal to something more than
the uncertainties of his own subjective emotions when he has reversed the
decision of a lower court. At the other extreme, there are a few judges
and law teachers who, under the influence of Thomism, Marxism, or
some other absolutistic metaphysics, insist that the certainties of law are
properly derivable from the certainties of morality. But the great majority
of those who write professorial texts or judicial opinions try to
save the certainty of law and the uncertainty of ethics by denying that
law and ethics have any necessary connection with one another.

Date of Authorship for this Version

1948

Keywords

law, ethics

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