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Brennan on Vining's Phenomenology of Law

By Lawrence Solum

Patrick McKinley Brennan (Villanova University School of Law) has posted Are Legislation and Rules a Problem in Law? Thoughts on the Work of Joseph Vining (Villanova Law Review, 2010) on SSRN. Here is the abstract:

Written for a conference at Villanova Law School held to celebrate and explore the work of Joseph Vining over forty years, this paper considers the adequacy of Vining?s phenomenology of law. Specifically, it inquires into the accuracy of Vining?s startling claims that ?legislation is a problem in law, not central to law? and ?rules are nowhere to be found? in law. The argument of the paper is that when -- but only when -- law is understood to be an ordinance of reason in the mind of him or them who have care of the community, for the common good, and promulgated, is legislation not a problem in law. Such an ordinance is not a problem, but in fact a very good thing, exactly because by it the ruling authority leads the people to their common good. The practical problem comes in framing ordinances that in fact live up to this definition, and for this regnative prudence is required. But the formation of such prudence, the paper also argues, is not itself a lawless enterprise. In the natural law tradition, the human project of making law is itself understood to be ruled by higher law. The paper concludes by asking whether Vining?s account of law is ultimately lawless. Vining, like Judge Noonan, understands the making of law to be, at its best, a response to persons. The paper contends that the all-important question, much mooted in modernity and not directly faced by Vining, is whether persons are themselves naturally under law, such that they can proceed to make more law on the basis of it. It is not clear how lawless persons can proceed to make law that is anything but arbitrary, yet it is clear that Vining denies that the arbitrary is law.

Full post as published by Legal Theory Blog on February 23, 2010 (boomark / email).