Genealogy of law

Abstract

The purpose of this dissertation is to trace the genealogy of our modern idea of law back to its logical and practical ancestors in order to understand liberal law. This is, of course, an analytical and synthetic rather than an historical genealogy.

The argument is at once a critique and a reconstruction. Chapters Two and Three set forth a critique and reconstruction of liberalism as a logical matter. It argues that liberalism does not make sense as a conceptual doctrine.

The argument is made in terms of liberty as categorial limitations on the authority of the state. For such liberty to have conceptual quality, it would have to be based in same ontological ground which is outwith the contingency of either mundane human desire or mundane natural reality. That is, it will have to have a metaphysical ground. Chapters Two and Three argue that no serious metaphysical theory will support the categorical limitations on the authority of the state inherent in liberalism. Metaphysical argument will only inform us of the conceptual truth that we have a plenary obligation to do good. We cannot conclude as a conceptual matter that we have limits on that obligation. Limits on that obligation, and therefore the realm of rights and liberty, are practical. Liberalism should be properly understood as a practical doctrine.

Chapters Four and Five set forth a critique and reconstruction of liberalism as a practical matter.

Liberalism as a practical doctrine is properly based in a theory of the person which accounts for the experiential nature of thought. No theory of the person is adequate unless it is based in the ontological ground to human activity -which is the conceptual conclusion of Chapters Two and Three. No such theory of the person is adequate which does not allow for the diversity and tolerance of human activity which is the experiential insight behind liberalism. Chapters Four and Five set forth a theory of personality which reconciles the non-mundane ground to good with the diversity of human activity. That theory of personality suggests that liberal law as a practical matter is mistaken and deleterious.