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The Nature of Law

A Tract Book Essay

By

Anthony J. Fejfar

© Copyright 2006 by Anthony J. Fejfar

Critical Legal Studies argues that Law is Politics. Some Logical

Positivists argue Law is Power. Postmodernists argue the Law is

Linguistics. I argue that Law is based primarily upon reason and

secondarily upon intuition. While law can indeed involve politics, power,

and linguistic analysis, I argue that these are not the primary attributes of

Law.

Law, based upon reason, operates in a three fold manner: experience,

understanding, judgment and reflection. It is in judgment and reflection,

especially, that intuition comes into play. In a law class, the law professor

typically starts the discussion of a case by asking about the facts. The facts

involve the level of experience. Without facts there can be no law. The

facts tell me whether I have a car crash case, or a train robbery. Without

facts it is impossible to tell what aspect of the law is applicable.

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Understanding, is the next aspect of reason, and law. At the level of

understanding, the law professor wants to know the theory of the case. He

or she wants to know what legal issues are presented in the case. He or she

wants to compare and contrast different legal theories and their application

to the facts. This, again, is the level of Understanding.

The last aspect of reason and law is judgment and reflection.

Judgment tells us how to apply the law to the facts and come up with the

holding of the case. It we have a difficult time figuring out how the law

applies, then policy analysis is appropriate. Reflection is that cognitive

function which involves policy analysis. Both judgment and reflection are

intuitive functions.

So, to summarize, I argue that law is based in the first instance upon

reason, and then secondarily upon intuition. Law is not merely a matter of

arbitrary politics. Law is not just power, unless law is corrupt. Law

involves some linguistic analysis, but cannot be limited to linguistic

analysis, since experience, judgment and reflection are also involved. In the

final analysis, Law is its own discipline.