The Army: A Profession of Arms

[jmm99]

since I am not going to be doing legal philosophy. My focus is as a legal practitioner, where I have to look at what the "law" is and how it will be applied today, and a certain amount of prophecy about the future (perhaps a decade or so out).

As one with a practitioner's focus, I will definitely not satisfy those who actually believe in Wilf's signature line - without his big grin at the end:

"I don't care if this works in practice. I want to see it work in theory!"

Therefore, I avoid getting involved in legal philosophical arguments (as a philosopher would voice them).

If wm and bob underwood join in such a discussion, much of it will be over my head. As you can see from Jurisprudence - Wiki, there are many different takes. Most of them are quite theoretical and are frankly outliers to the legal practitioner.

The closest "school" fitting the practitioner is probably that of Legal realism - Wiki:

The essential tenet of legal realism is that all law is made by human beings and is therefore subject to human foibles, frailties and imperfections.

In accord with that soundbite, legal realists and legal practitioners are an unruly bunch of cats, whose "philosophies" and "logic systems" tend to be more or less "fuzzy" (see Fuzzy Logic - Wiki).

That description fits the granddaddy tiger of US realism, Oliver Wendell Holmes, Jr, whose best soundbite was this one, tailored especially for Ken:

Holmes, in his last years, was walking down Pennsylvania Avenue with a friend, when a pretty girl passed. Holmes turned to look after her. Having done so, he sighed and said to his friend, "Ah, George, what wouldn't I give to be seventy-five again?" Isaac Asimov, (writing as "Dr. A"), The Sensuous Dirty Old Man (1971).

Of course, Holmes was very much shaped by his brief, but bloody military career as a Lt. and Cpt. in the 20th Massachusetts, Oliver Wendell Holmes, Jr., "The Magnificent Yankee". That experience lay behind another of his soundbites (more pertinent to the present thread):

This responsibility will not be found only in documents that no one contests or denies. It will be found in considerations of a political or social nature. It will be found, most of all in the character of men.

In that, Holmes was cognizant of the Heroes (e.g., as described by Brian Linn), but also the Anti-Heroes.

From the legal practitioner's standpoint, the most important Holmesian soundbites are these:

The life of the law has not been logic; it has been experience.

General propositions do not decide concrete cases.

Those satisfy me; probably will satisfy Wilf; but probably will not satisfy he or she who demands: "I don't care if this works in practice. I want to see it work in theory!"

Adding to this same train of thought are some longer Holmesianisms:

...men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite. The common law is not a brooding omnipresence in the sky.

The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law.

The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

I don't want this to turn into a three-sided debate; but I felt obligated to the readers who are not into legal philosophy (jurisprudence) to point out that legal practice is a very different breed of cat - to whom, the theorists are generally very much outliers.

None the less, I'm looking forward to a debate between philosophers about Just Law Theory, duties and rights (or should it be rights and duties ?). I leave one last Holmesianism for our philosophers:

Any two philosophers can tell each other all they know in two hours.

Cheers and regards

Mike