Submitted by Jacqueline Laing on Tue, 2011-04-26 21:40
|Title||The Mechanics of Perfection : Philosophy, Theology, and the Foundations of American Law |
|Publication Type||Book Chapter |
|Year of Publication||2009 |
|Authors||Backer, LC |
|Book Title||On Philosophy in American Law |
|Publisher||Cambridge University Press |
Americans have been obsessed about the mechanics of perfectibility. Perfectibility is built into the constitutive documents of the American Republic. The expression of that perfection is Law, and Government provides the means. The mechanics of perfectibility lies in philosophy and theology. Through these mechanics Americans can discern the spirit of perfection - as God or as the genius of the American community made manifest. The essay considers these notions in the context of two cases, Swift v. Tyson (1842) and Erie Railroad Co. v. Tomkins (1938), which provide both the antipodes of American conceptions of the sources and hierarchy of law, and also suggest the mechanics of a mandatory perfectibility in American. But the judge is not the only intermediary between perfection and its expression in law. The essay suggests the way the political branches also seek the role of privileged (and uniquely privileged) intermediaries between the people and perfection. The essay ends with a consideration of the value of the theology of faith and reason in the elaboration of American jurisprudence.