A stroll through the flanders field of Law

The truly great need no synthesis. They absorb whatever experience offers them. Their intensely creative personalities act like a fiery furnace, melting away contradictions. What emerges is either a harmonious whole or a creative parallelism with parts that mutually fructify and supplement each other. The truly great do not need to trim edges, as it were, to make genuine experiences fit with each other. They preserve them intact. And if their experiences appear contradictory, they build an emotional bridge spanning them allowing both the landscape and the water to be seen. Lesser mortals resort to logical means of harmonization. (David Weiss Halivni)

The law of nature is no longer conceived of as something static and eternal. It does not override human or positive law. It is the stuff out of which human or positive law is to be woven, when other sources fail. Such is the eclecticism that emanates from Halivni’s writing as revealed in his articles on freedom with which he relied upon the ideas of his predecessors and his contemporaries. These affinities and resemblances of ideas so pervade his writings that their interpretation eludes the apparatus of citation and footnote. His unfailing nobility of thought reminds one of Plato, as does his persistent striving to find beneath the social flux the realities of social justice. His search for principles of value behind precedents resembles the agelong search for natural law. Yet his reality and his natural law are not eternal, immutable formulas. His writings assume a belief in human progress which is typical of American idealism. His respect for the moral traditions of a people is akin to Savigny’s, but is strongly influenced by Holmes’ view that continuity with the past is only a necessity. In his quick and righteous indignation at those who act from impure motives, he shows sometimes the Puritanical sternness of Kant, at other times the more humane idealism of Stammler. This is, perhaps, his dominant thought. Yet in his insistence upon the appraisal of legal rules and legal institutions in terms of their social consequences he carries forward the utilitarianism of Jeremy Bentham and the sociological jurisprudence of Holmes and Dean Pound. Finally, in his avowed and often exemplified distrust of conventional formulas and in his insistence that the rule must fit the case and not the case the rule, he shows that faith in the power of reflective problem-solving, as an interplay of data and ideas, which is typical of the thought of John Dewey. Halivni’s philosophy of law and Justice is thus representative of the best that has contributed to the Global intellectual tradition


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