Don Burnett- Dean, College of Law
November 6, 2012
12:30-1:30 p.m.
Whitewater Room, Idaho Commons

Abstract: In a society governed by the rule of law, rather than by the mere preferences of powerful individuals, the law must embody principles broad enough to be coherent, specific enough to be effective, and flexible enough to cope with the pressures of social and technological change.  Early Western jurisprudence was characterized by a search for immutable truths drawn from antiquity or revealed through ecclesiastical study.  During the late Renaissance and the Industrial Revolution, immutability yielded to utilitarianism – promoting the “greatest good for the greatest number -- as the highest object of the law.  In the mid-nineteenth century, utilitarianism evolved, or devolved, into positivism (a view that the law, having no conceptual anchor, is nothing more than a set of enforceable commands), followed by sociological jurisprudence (which treated law primarily as a process by which social forces are expressed and accommodated), and then, in the twentieth century, by “realism” (which reprised the positivist idea that law simply expresses power and cannot be expected to constrain it).  This synthesis of law and power proved unsatisfactory.  The Holocaust, the emergence of murderously despotic regimes in Europe and Asia, and the devastation wreaked by a second world-wide war, all contributed a rejection of rootless law.  The jurisprudential pendulum swung back to a search for legal principles and institutions -- exemplified by the codification of universal human rights and the creation of war crimes tribunals – that would shape and sustain a durable commitment to the rule of law. 

 

This search, which continues to the present day, has advanced along many intellectual paths, two of which will be examined here:  (1) the articulation of general principles of ethical behavior in the learned professions, such as the practice of law, coupled with situation-specific guides to appropriate conduct; and (2) the “law and economics movement,” which seeks to develop principles to advance the oft-competing goals of efficiency and equity, and to provide methods for gauging the actual impacts of statutes, regulations, and judicial decisions in particular contexts.  In this “Humanities Exploration” program, prominent milestones along each intellectual path will be examined, and members of the audience will be challenged to think about how  they would create a set of principles that do not merely evince their own personal preferences, but rather are sufficiently coherent, specific, and flexible to identify a general concept of justice, to achieve it in specific cases, and to stand the test of time.