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Posts Tagged ‘Murray Rothbard’

Conservatives and the Natural Law vs. Positive Law Debate

In American History, Arts & Letters, Conservatism, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, News and Current Events, Politics on July 14, 2011 at 5:30 pm

Allen Mendenhall

Three days ago, the Claremont Review of Books posted two interesting reviews on jurisprudence.   The first, “Natural Law Man,” is a reprint of a piece that appeared in the Winter/Spring 2010-11 issue.   Here, Michael M. Uhlmann praises Hadley Arkes’s Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law.  In the second review, “A Plea for Positivism,” Bradley C. S. Watson comments on Gary L. McDowell’s The Language of Law and the Foundations of American Constitutionalism.  (Click here to read McDowell’s discussion of the book with Edwin Meese, III.)  Both reviews situate their subjects alongside conservative theory.  Both books are worth reading. 

The prevailing tendency among some uncritical commentators is to binarize natural law theory and positive law theory as polar opposites.  That’s understandable if the terms “natural law” and “positive law” are reduced to cliché.  But cliché, although helpful to students first getting introduced to concepts, doesn’t do justice to the complexities and challenges of natural law or positive law jurisprudence.  In any event, it is curious that both natural law theorists and positive law theorists claim to have influenced, and to have been influenced by, conservatism.  That fact alone suggests that natural law theory and positive law theory are complicated.  Here are some readings that will complicate the complicated:  Murray Rothbard’s excerpts “Introduction to Natural Law” and “Natural Law versus Positive Law,” F. Russell Hittinger’s short pieces “Natural Law” and “The Rule of Law and Law of Nature,” Robert P. George’s “Witherspoon Lecture,” and Fred Hutchison’s overview “Natural Law and Conservatism.”

The Oft-Ignored Mr. Turton: The Role of District Collector in A Passage to India

In Arts & Letters, Austrian Economics, E.M. Forster, Jurisprudence, Law-and-Literature, Legal Education & Pedagogy, Libertarianism, Literary Theory & Criticism, Politics, Religion, Writing on December 23, 2010 at 2:43 pm

Allen Mendenhall

Click here to read my latest law-and-literature article.  Below is the abstract for the article, which appears in Libertarian Papers:

E.M. Forster’s A Passage to India presents Brahman Hindu jurisprudence as an alternative to British rule of law, a utilitarian jurisprudence that hinges on mercantilism, central planning, and imperialism.  Building on John Hasnas’s critiques of rule of law and Murray Rothbard’s critiques of Benthamite utilitarianism, this essay argues that Forster’s depictions of Brahman Hindu in the novel endorse polycentric legal systems.  Mr. Turton is the local district collector whose job is to pander to both British and Indian interests; positioned as such, Turton is a site for critique and comparison.  Forster uses Turton to show that Brahman Hindu jurisprudence is fair and more effective than British bureaucratic administration.  Forster’s depictions of Brahman Hindu are not verisimilar, and Brahman Hindu does not recommend a particular jurisprudence.  But Forster appropriates Brahman Hindu for aesthetic and political purposes and in so doing advocates a jurisprudence that does not reduce all experience to mathematical calculation.  Forster writes against the Benthamite utilitarianism adopted by most colonial administrators in India.  A tough figure to pin down politically, Forster celebrates the individual and personal relations: things that British rule of law seeks to suppress.

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