Dear Steve and colleagues;

Very interested in the parallels between law and theology (thanks Chaim), and in Geoffrey Samuel's article (thanks for the citation, Steve), as someone who has a bit of background in both. I need to digest Geoffrey's interesting article a bit more but I think I'm right to say that the parallel he draws is not so much that both law and theology prescribe how people should live, but that both are based on authoritative texts. I would also say that while theology will/should result in a change in behaviour, the essence of the discipline is actually the study of God rather than the study of human behaviour (what is discovered or revealed about God then flowing on to behaviour.) That's why it is called "theo"logy rather than "anthrop"ology.

Regards

Neil F

Neil Foster

Senior Lecturer & LLB Program Convenor

School of Law

Faculty of Business & Law

University of Newcastle

Callaghan NSW 2308

AUSTRALIA

ph 02 4921 7430

fax 02 4921 6931

>>> "Hedley, Steve" <S.Hedley@ucc.ie> 11/29/08 9:19 AM >>>

Various points of interest in reply.

 

As to Chaim's parallel with theology, I entirely agree. This has been discussed in some detail recently by Geoffrey Samuel, who argues (roughly) that Law should be classed with dogmatic theology, as being another attempt to prescribe how people should live - whereas the other social sciences, like the physical sciences, are attempts to describe what the universe is like, a very different endeavour. (Yes, Geoffrey, I'm sure I've got this slightly wrong, but I never claimed to be an epistemologist! See Samuel, "Is Law really a social science?" (2008) 67 Cambridge LJ 288.)  However, I tend to avoid drawing this parallel in my own writing, because everyone brings different assumptions to bear on it - both their own beliefs, and what they imagine mine to be - and comprehension suffers as a result.

 

As to Jason's examination metaphor, the difficulty is that he's chosen obviously weak individuals in his example, who would clearly be condemned as such by anyone who knew the facts - allowing their emotions to get the better of them, or acting cravenly in the face of threats. (We might make excuses for these guys, but there would definitely be something to excuse.) I know that Jason thinks Denning just as bad, but he needs to argue that - just asserting it doesn't get us any further, and is the root of our disagreement. No-one would defend what Jason's examiners do, but plenty defend Denning. The metaphor would only come to life if Jason picked cases where there is genuine and severe disagreement over what the examiners should do - such as whether students with specific diagnosed learning difficulties should be judged by a more lenient standard than the norm, or (to move the matter to university admissions) whether a grade B paper from a slum kid should be treated as a greater achievement than a grade B paper from a kid in more comfortable circumstances. Then it would be a real problem, and not the straw man Jason sets up.

 

Finally, as to Richard's attempts to classify Denning and myself, I'm really not sure the terms he's using survive their passage over the Atlantic. Neither of us is/was any sort of economist. As a devout and vocal Christian, I would imagine that Denning would have been quite offended to be described as a "utilitarian" - the only time I've heard him called that was in relation to his infamous "appalling vista" dictum (which has little to do with obligations, though it is an important factor in his general reputation - in relation to his reputation, Denning was really, really lucky to have picked civil law over criminal law). If paying SOME attention to consequences (amongst other things) makes me a utilitarian, then I guess I'm a utilitarian, but it's a bit artificial.  After all, even Jason talks about consequences up to a point (talking of the "corrosive" consequences that flow from approaches he doesn't care for, or the dangerous consequences of diminishing respect for the law).

 

 

 

Steve Hedley

UCC