NCJ Number
117105
Journal
Mercer Law Review Volume: 39 Issue: 2 Dated: (Winter 1988) Pages: 591-640
Date Published
1988
Length
50 pages
Annotation
Contemporary legal theory, philosophy, and analysis are examined in relation to ethical considerations.
Abstract
Jurisprudence in the 20th century has oscillated among the three basic positions of formalism, idealism, and realism. Following a review of various legal theories and philosophies, the focus turns toward the regeneration of law as process. Lawyers are hindered in their efforts to look beyond law in three specific ways: 1) legal methods contain a strand of imaginative construction that is neither recognized nor accounted for; 2) legal methods assume a view of human existence described as 'ontological individualism' that excludes the human community as a viable source of shared values; and 3) legal methods do not incorporate insights from other academic disciplines. The author contends that legal process thought provides unique insights into the nature of human existence and a philosophical method that can help jurisprudence overcome the limitations lawyers face. Law as process begins from a community premise. The community must have the right to defend itself against acts injurious to overall community welfare and must avoid the unfair use of community power against unpopular members. Law as process is primarily a matter of legal ideals derived from the needs of shared community life. It is recognized, however, that the community is not really ideal and that the essence of law as process involves striving toward the ideal. 246 references.