文章基本信息

标题：Iredell Jenkins’ Social Order and the Limits of Law
本地全文：下载
作者：David Norton
期刊名称：Reason Papers : A Journal of Interdisciplinary Normative Studies
印刷版ISSN：0363-1893
出版年度：1981
卷号：7
出版社：Reason Papers
摘要：Iredell Jenkins is mistrustful of the spreading belief in the omnicompetence of law to effect social reform. In a comprehensive, elegant, and unfalteringly cogent study of the nature of positive law-Social Order and the Limits of Law: A Theoretical Essay (Princeton, N. J.: Princeton University Press, 1980)-Professor Jenkins equips the reader with an understanding of the nature of positive law that gives force to the mistrust. The problem is that the high hopes and good intentions of the reformers are coupled with a shortsighted and opportunistic view of the relationship of positive law to social aims. According to Jenkins, positive law inevitably gives form and direction to society, but it cannot do so cavalierly and in disrespect of the antecedent and extra-legal "lived relationships" that are the foundation of its authority. Positive law is but a supplemental principle of order, called into being by the distinctive "plasticity" of human being. It must preserve consonance with the prior and more pervasive orders from which it has emerged and which are, on Jenkins's evolutionary theory, conserved within it.