Wed, 7 December 2011
Legal historian John Witte, Jr. discusses why the positivist view of law has become less compelling. Like his mentor, the late Harold Berman, Witte argues that the key to understanding Western law lies in identifying the rich, early Western dialogue between religious and secular institutions; and it requires an understanding of the ways in which legal authority shifted between church and state throughout history. Similarly, Witte argues that because legal jurisdiction in various matters has shifted from the church to the state, religious presuppositions are still a part of the vocabulary Westerners have always used to define the meaning and limits of the law. If Witte’s formulation is correct, then the consistency of the Western legal system relies upon this strong interplay between secular and religious insights; the prevailing view since the Western Enlightenment, that laws can be described in purely “secular” terms, has had the effect of unravelling the substance of the Western legal tapestry originally woven from threads of secular and religious thought.