Hosam Hawamdeh
02-06-2010, 05:20 AM
by
MAX HAMBURGER
NEW HAVEN: YALE UNIVERSITY PRESS
LONDON • GEOFFREY CUMBERLEGE • OXFORD UNIVERSITY PRESS
=========================================
FOREWORD
By Huntington Cairns
FROM THE TIME OF Francis Bacon, English legal spec-
ulation and, later, its American counterpart have been under
the dominance of a set of ideas which seemed to offer possibili-
ties for the analysis of such a practical discipline as law. This
movement took its departure from experience and has reached
a culmination today in the general view which emphasizes util-
itarianism in ethics, an anti-natural-law attitude in legal theory,
the doubtfulness of all knowledge, liberalism in politics, agnos-
ticism in religion, the quantitative approach in psychology, a
concentration upon epistemology, and an indifference to meta-
physics. One of the great achievements of empiricism was the
impetus it gave in the nineteenth century to the development of
the social sciences. For law, this led to a systematic attempt,
which is still in progress, to work out the social character of the
legal structure. On both the theoretical and practical sides there
have been notable gains in recent legal analysis. The problems
of scientific inquiry have been brought to the fore, the tasks of
the law have been defined with greater precision, and legal spec-
ulation, which had assumed, in analytical jurisprudence, a position
of dangerous isolation, has been adjusted in the twentieth cen-
tury to the other disciplines which are analyzing what is essen-
tially the same subject matter. Not the least of the advances
due to the empirical attitude has been the reformation it has
prompted within the legal process itself. The effort of legal
thought to improve the administration of justice, to correct the
penological system, and to restate the inherited legal concepts in
the light of contemporary social conditions, is the direct prod-
uct of the empirical impulse.
In contrast to empiricism, although not opposed to it at all
points, is the attitude of classical rationalism. Until the Renais-
sance it represented the prevailing point of view--however col-
ored and hedged it had become under Christian influence--and
most of the world's great legal philosophies have manifested at-
tempts to explain law in accordance with its tenets. Its point of
departure appears to be Aristotle's dictum that contradiction and
being are incompatible. It emphasizes logically necessary con-
nection, stresses the point that there are sources of knowledge
other than experience, is metaphysical and monistic at bottom,
holds truth to be objective and to be discoverable (as distin-
guished from invented), assumes the world to be intelligible,
believes that experience is one of the methods that lead to some
understanding of it, and asserts that epistemology is dependent
upon ontology. This position was formulated by the philoso-
phers of the classical world, but the refinements imposed upon
it by the medieval schoolmen seemed extreme to post-Renais-
sance thinkers; the empirical reaction had already set in by the
end of the thirteenth century.
Today we are at the beginning of another reaction, this time
against unqualified empiricism. The theoretical justification of
empiricism culminates with the philosophy of Hume, and not-
withstanding the painstaking efforts of several generations of
thinkers of the utmost acuteness, including such notable con-
temporaries as Dewey and Russell, no new speculative principle
has been added to traditional empiricism. There have been, how-
ever, improvements in detail, in the development of the meaning
and usefulness of empiricism, but contemporary efforts to work
out a logic of science have developed a dissatisfaction with
empiricism on two scores. Its antimetaphysical attitude is itself
a metaphysical assumption which it has not yet justified; this is
the first cause of discontent, and it is directly associated with
the second. Empiricism's interest in particular circumstances has
opened new fields of inquiry; it has also brought accumulations
of data to the scrutiny of scientific insight. This has been part of
its power. But inquiry which recognizes no limiting principle
may find itself unable to distinguish the significant from the in-
significant. This is a danger which much current investigation
in the social sciences exemplifies. Empiricism founders in its own
detail, and hence the urgently felt need today for general princi-
ples to give meaning to its data. Altogether apart from the neces-
sity for scientific investigation of a belief in the intelligibility of
the world, a position of some theoretical generality is an indis-
pensable guide to inquiry: it leads to system and assists in guid-
ing analysis.
Dr. Hamburger has thus put us in his debt by his present
careful study of the growth of Aristotle's legal thought. Fol-
lowing the attacks of Bacon, Locke, and Hobbes, Aristotelian
scholarship suffered a decline and was not restored to a position
of importance until the nineteenth century. But lawyers have
remained in the grip of the empirical tradition. The publication
of the Berlin edition of Aristotle, initiated in 1831, gave the
impetus to Aristotelian studies which produced the great nine-
teenth-century commentaries. Logic, metaphysics, biology, crit-
icism, ethics, psychology, politics, and the philosophy of nature,
all benefited from this revival. Analytical jurisprudence, how-
ever, with its restricted conception of its subject matter and its
conviction that it was a self-sufficient discipline, continued until
recently to guide legal thought in this particular, and the law
produced no account of Aristotle's juristic ideas worthy of a
place beside the commentaries of other fields of inquiry. The
treatises on Aristotle's political thought could not fail to call
attention to the richness of the legal material imbedded in his
works, but the indifference of the lawyers continued under the
mistaken impression that Aristotle's grasp of legal theory was
that of an amateur.
The twentieth-century effort to reinterpret jurisprudence is
forcing legal thought to a consideration of the analyses put for-
ward by classical Greek philosophy. In comparison with its
allied social sciences jurisprudence has come late to that field,
but the excursion will be a profitable one. Greek philosophy in
general, and Aristotle in particular, offer a view of law as the
basic element of the social structure. Law is divorced neither
from philosophy nor from ethics and politics. Aristotle saw its
problems distinctly, but he saw them in relation to the other
affairs of life. It is now clear that he also approached the field
with adequate technical knowledge. Aristotle does not put his
problems as we put ours. Since the Renaissance large fractures
have developed in our approaches to the problem of society. We
have separated ethics and politics, and have divided both of them
from philosophy. This was a mistake that Aristotle did not make,
and much of the energy of twentieth-century thought now goes
to relating these currents of speculation to one another. In this
task jurisprudence has an indispensable role, and Aristotle's anal-
ysis of the problems involved has a special value. Since he wrote
there has been a large accretion of data of which account must
be taken. But the speculative area occupied by law has a dis-
tinctive feature not present in the field of the more exact sci-
ences. Scientific theories which are shown to be false are at once
abandoned; but the state of jurisprudence is such that the work-
ers in its domain must always rethink its problems. Jurisprudence
will never develop the power which it inherently possesses until
it reexamines its problems from the synoptic position.
Dr. Hamburger's careful account of basic aspects of Aristotle's
legal analysis is an important addition to a neglected field. He is
both a judicious classical scholar and a lawyer whose works are
held in high esteem by European jurists. His present volume per-
forms a substantial service for American legal thought.
to continue reading click here (http://www.questia.com/read/54986565?title=Morals%20and%20Law%3a%20The%20Growt h%20of%20Aristotle%27s%20Legal%20Theory)
MAX HAMBURGER
NEW HAVEN: YALE UNIVERSITY PRESS
LONDON • GEOFFREY CUMBERLEGE • OXFORD UNIVERSITY PRESS
=========================================
FOREWORD
By Huntington Cairns
FROM THE TIME OF Francis Bacon, English legal spec-
ulation and, later, its American counterpart have been under
the dominance of a set of ideas which seemed to offer possibili-
ties for the analysis of such a practical discipline as law. This
movement took its departure from experience and has reached
a culmination today in the general view which emphasizes util-
itarianism in ethics, an anti-natural-law attitude in legal theory,
the doubtfulness of all knowledge, liberalism in politics, agnos-
ticism in religion, the quantitative approach in psychology, a
concentration upon epistemology, and an indifference to meta-
physics. One of the great achievements of empiricism was the
impetus it gave in the nineteenth century to the development of
the social sciences. For law, this led to a systematic attempt,
which is still in progress, to work out the social character of the
legal structure. On both the theoretical and practical sides there
have been notable gains in recent legal analysis. The problems
of scientific inquiry have been brought to the fore, the tasks of
the law have been defined with greater precision, and legal spec-
ulation, which had assumed, in analytical jurisprudence, a position
of dangerous isolation, has been adjusted in the twentieth cen-
tury to the other disciplines which are analyzing what is essen-
tially the same subject matter. Not the least of the advances
due to the empirical attitude has been the reformation it has
prompted within the legal process itself. The effort of legal
thought to improve the administration of justice, to correct the
penological system, and to restate the inherited legal concepts in
the light of contemporary social conditions, is the direct prod-
uct of the empirical impulse.
In contrast to empiricism, although not opposed to it at all
points, is the attitude of classical rationalism. Until the Renais-
sance it represented the prevailing point of view--however col-
ored and hedged it had become under Christian influence--and
most of the world's great legal philosophies have manifested at-
tempts to explain law in accordance with its tenets. Its point of
departure appears to be Aristotle's dictum that contradiction and
being are incompatible. It emphasizes logically necessary con-
nection, stresses the point that there are sources of knowledge
other than experience, is metaphysical and monistic at bottom,
holds truth to be objective and to be discoverable (as distin-
guished from invented), assumes the world to be intelligible,
believes that experience is one of the methods that lead to some
understanding of it, and asserts that epistemology is dependent
upon ontology. This position was formulated by the philoso-
phers of the classical world, but the refinements imposed upon
it by the medieval schoolmen seemed extreme to post-Renais-
sance thinkers; the empirical reaction had already set in by the
end of the thirteenth century.
Today we are at the beginning of another reaction, this time
against unqualified empiricism. The theoretical justification of
empiricism culminates with the philosophy of Hume, and not-
withstanding the painstaking efforts of several generations of
thinkers of the utmost acuteness, including such notable con-
temporaries as Dewey and Russell, no new speculative principle
has been added to traditional empiricism. There have been, how-
ever, improvements in detail, in the development of the meaning
and usefulness of empiricism, but contemporary efforts to work
out a logic of science have developed a dissatisfaction with
empiricism on two scores. Its antimetaphysical attitude is itself
a metaphysical assumption which it has not yet justified; this is
the first cause of discontent, and it is directly associated with
the second. Empiricism's interest in particular circumstances has
opened new fields of inquiry; it has also brought accumulations
of data to the scrutiny of scientific insight. This has been part of
its power. But inquiry which recognizes no limiting principle
may find itself unable to distinguish the significant from the in-
significant. This is a danger which much current investigation
in the social sciences exemplifies. Empiricism founders in its own
detail, and hence the urgently felt need today for general princi-
ples to give meaning to its data. Altogether apart from the neces-
sity for scientific investigation of a belief in the intelligibility of
the world, a position of some theoretical generality is an indis-
pensable guide to inquiry: it leads to system and assists in guid-
ing analysis.
Dr. Hamburger has thus put us in his debt by his present
careful study of the growth of Aristotle's legal thought. Fol-
lowing the attacks of Bacon, Locke, and Hobbes, Aristotelian
scholarship suffered a decline and was not restored to a position
of importance until the nineteenth century. But lawyers have
remained in the grip of the empirical tradition. The publication
of the Berlin edition of Aristotle, initiated in 1831, gave the
impetus to Aristotelian studies which produced the great nine-
teenth-century commentaries. Logic, metaphysics, biology, crit-
icism, ethics, psychology, politics, and the philosophy of nature,
all benefited from this revival. Analytical jurisprudence, how-
ever, with its restricted conception of its subject matter and its
conviction that it was a self-sufficient discipline, continued until
recently to guide legal thought in this particular, and the law
produced no account of Aristotle's juristic ideas worthy of a
place beside the commentaries of other fields of inquiry. The
treatises on Aristotle's political thought could not fail to call
attention to the richness of the legal material imbedded in his
works, but the indifference of the lawyers continued under the
mistaken impression that Aristotle's grasp of legal theory was
that of an amateur.
The twentieth-century effort to reinterpret jurisprudence is
forcing legal thought to a consideration of the analyses put for-
ward by classical Greek philosophy. In comparison with its
allied social sciences jurisprudence has come late to that field,
but the excursion will be a profitable one. Greek philosophy in
general, and Aristotle in particular, offer a view of law as the
basic element of the social structure. Law is divorced neither
from philosophy nor from ethics and politics. Aristotle saw its
problems distinctly, but he saw them in relation to the other
affairs of life. It is now clear that he also approached the field
with adequate technical knowledge. Aristotle does not put his
problems as we put ours. Since the Renaissance large fractures
have developed in our approaches to the problem of society. We
have separated ethics and politics, and have divided both of them
from philosophy. This was a mistake that Aristotle did not make,
and much of the energy of twentieth-century thought now goes
to relating these currents of speculation to one another. In this
task jurisprudence has an indispensable role, and Aristotle's anal-
ysis of the problems involved has a special value. Since he wrote
there has been a large accretion of data of which account must
be taken. But the speculative area occupied by law has a dis-
tinctive feature not present in the field of the more exact sci-
ences. Scientific theories which are shown to be false are at once
abandoned; but the state of jurisprudence is such that the work-
ers in its domain must always rethink its problems. Jurisprudence
will never develop the power which it inherently possesses until
it reexamines its problems from the synoptic position.
Dr. Hamburger's careful account of basic aspects of Aristotle's
legal analysis is an important addition to a neglected field. He is
both a judicious classical scholar and a lawyer whose works are
held in high esteem by European jurists. His present volume per-
forms a substantial service for American legal thought.
to continue reading click here (http://www.questia.com/read/54986565?title=Morals%20and%20Law%3a%20The%20Growt h%20of%20Aristotle%27s%20Legal%20Theory)