The Nature Of Law

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.

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