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Meaning and Method in the Philosophy of Law

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Meaning and Method in the Philosophy of Law The Catholic Lawyer Volume 5 Number 3 Volume 5, Summer 1959, Number 3 Article 4 Meaning and Method in the Philosophy of Law Rt. Rev. Msgr. Joseph Graneris Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons, and the Ethics and Political Philosophy Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. MEANING AND METHOD IN THE PHILOSOPHY OF LAW t RT. REV. MSGR. JOSEPH GRANERIS* Translated and adapted by REV. WILLIAM F. CAHILL, B.A., LL.B., J.C.D.** [Editor's Note The editors of THE CATHOLIC LAWYER believe that two purposes may be served by presenting in these pages Monsignor Joseph Graneris' essay on the meaning and method of the philosophy of law This essay will serve to introduce to American lawyers other studies by the same author. Those studies, directed to specific problems in the relationship between natural law and positive law, will be presented from time to time in future issues of THE CATHOLIC LAWYER. Monsignor Graneris has authorized Father Cahill to translate and adapt his work for such presentation. The studies are rooted in the author's deep learning of the philosophy of St. Thomas Aquinas. He draws upon that learning, not merely to speculate about natural law or to develop its moral precepts, as most writers in the scholastic tradition have done, but rather to find in natural law the validating and quickening element of positive law. t This article, in its original form, was published as the introductory chapter of the author's work PHILOSOPHIA JURIS (1943). * Professor of Philosophy of Law at the Pontifical Institute of Civil and Canon Law, Lateran University, Rome; Prelate of the Sacred Congregation of the Holy Office. ** Priest of the Diocese of Albany. Professor of Law, St. John's University School of Law. MEANING AND METHOD The essay, presented here out of its Philosophy in Learning original context and in somewhat altered RISTOTLE EXTOLLS THE STUDENT. of form, serves a more immediate purpose. It metaphysics, saying that he is to be delineates clearly the concept of jurispru- numbered among those wiser men "whose dence as a complex discipline which draws learning is not pursued for the sake of util- upon general philosophy, as well as upon ity, but for the sake of learning itself."' legal science and legal history, to develop a Yet one should take care not to infer from reasoned philosophy of what law is and this statement that the noblest of mental ought to be, and to implement that philoso- disciplines is to be accounted a useless phy in the lawyer's art. study. The soul of man, though it is not the slave of his body, sustains the body in life. Every inquiry into jurisprudence offers a generalized view of law. The viewpoint God does not exist to serve the world, yet the world's existence without God is in- taken by any inquirer, in his investigations conceivable. So also, though usefulness is and in his report of them, has for its major not the raison d'etre of metaphysics, for premise the inquirer's philosophy - the the science of metaphysics was not devel- meaning he finds in man and the world. oped to serve utility, yet metaphysics is a Often, the major premise is inarticulate, necessary development of human thought. in the inquirer's report and even in his own Metaphysics is born of that necessity by mind, so that one who reads his report is which the human mind is driven, as if by asked to accept the product of a philosophy its own weight, to investigate the intimate without knowledge of the philosophy's char- nature of things and their ultimate causes. acter, and even without notice of its exis- The jurists throw out a question, "What tence. is the use of the philosophy of law?", and With increasing frequency, our contem- the philosophers take it up in all serious- porary writers in jurisprudence claim that ness: "Philosophy is beyond the useful, for their study of law has no philosophical it is necessary, indispensable, immanent. In- premises. The disclaimer itself rests upon deed, one does not philosophize because he wants to, but because it is impossible not to a philosophical postulate- that a philosophy 2 of law is impossible, or that law is a phe- philosophize." nomenon only and is adequately understood The force of this natural desire is so without philosophical inquiry. great and so broad, that whatever be the While the jurisprudential inquirer's view- science to which a man devotes himself, he point on law is inspired by his philosophy, forever feels the insufficiency of his knowl- that viewpoint in turn directs the choice edge and is oppressed by that shortcoming, and use of method in the inquiry. A method until he pursues his study into the realm of whose scope and bent distort the object to philosophy. The several sciences are like be studied, or whose potential for aberra- tion is not realized, can be as misleading to I ARISTOTLE, METAPHYSICS, Bk. 1, Ch. 1; cf. the inquirer and to his reader as a faulty AQUINAS, COMMENTARY, Bk. 1, Lect. 1, n. 32. philosophy. ] 2 MAGGIORE, FILOSOFIA DI. DmIrTTo 8. 5 CATHOLIC LAWYER, SUMMER 1959 so many sides of a single mountain - from cept of the universe, so that his every de- whatever side you scale the mountain, your liberate action expresses his judgment and ascent is imperfect and you are less than his conviction upon the purpose and value satisfied, unless you reach the summit. And of human life and, therefore, upon the ulti- that summit, from whatever side or science mate meaning of the universe of things. So it be approached, is one and the same. It is true is this, that when life is understood in philosophy, in which within the natural a human and active sense, the common order of knowledge and prescinding from dictum, "one must live first, and then phi- the supernatural, every science must achieve losophize," must give place to the truer its perfection. statement, "to live is to philosophize." It is not to be wondered at that all dis- Philosophy in Life ciplines which directly study human con- What has been said about sciences in duct are under a greater necessity of ascend- general is especially true of those which ing the high mountain of philosophy. The study human action. As long as we merely object they study, human conduct, implic- speculate, there is an apparent possibility itly contains philosophy, as if in its seed, of a skeptical approach, or at least one may and our minds, by an instinct of their own, entertain the illusion that he is not making feel that their-knowledge of this object can- judgments and choices. When, however, we not become perfect until that implicit phi- begin to act, .then we begin necessarily to losophy has been made explicit, revealing struggle against the precepts of skepticism, the meaning and the value of our conduct. and we are conscious of that struggle if our A very clear example of this necessity is action is truly human. We do not act hu- seen in the study of the law of crimes. Be- manly except by the exercise of choice, we cause that branch of the law is concerned choose nothing except from the desire with human conduct more evidently, more for a purpose, we do not set up purposes immediately, and more exclusively, than the for ourselves unless under the command or other areas of law, the study of criminal law influence of a settled way of conceiving ahd has always maintained more intimate and ordering our lives. This way is a synthetic more manifest connections with philosophy. or philosophical view of the universe, or All jurists recognize the fact that philosophy this way is at least a necessary, though per- strongly influences the penal law - that they haps remote and subconscious, consequence dispute whether the influence it exercises of that view. is useful or harmful is another matter. Human conduct, because it proceeds We have, in the foregoing, anticipated from choice, therefore drives the actor, not an objection which may be raised, "all law only out of physical inertia, but also out of is oriented toward action, which is far re- that philosophical indifference in which the moved from philosophy." In action itself, skeptics try to immure mankind. The spiri- that is, in the very nature of human con- tual-minded and the materialist, the atheist duct, we find the strongest impulse to phi- and the theist, the ascetic and the sensual- losophical thinking, for our conduct grows ist, rarely accord with each other in their out of philosophy, it has its foundations in aspirations or in their conduct, for in willing philosophy, and its throws us into philoso- and in acting every man is led by his con- phical study. MEANING AND METHOD Philosophy in Law and law among the objects of their considera- Law in Philosophy tion, and have often attributed to it a prime It is indeed true that the lawyer's greatest position in their studies. Among these we need is for that art or skill by which he ap- must count Cicero, who believed that his plies legal rules to facts, and that art may legal writings found favor because they seem remote from the labored dicta of drew upon philosophical wisdom.r, Vico, philosophers.
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