Get Ready for the Parasites!!!

Interstate commerce?

And why aren't you studying?

 

Indeed. And what of the distinction between WHAT IS and WHAT OUGHT TO BE?

 

decimon:

Well, I got an overdue essay in and this morning I had a good tutorial session...I'm feeling better, still behind, but not so panicked.

Ted:

There is a LOT of difference in the world of jurisprudence between "What IS" and "What OUGT TO BE". The "ought to be" folks tend to be natural law lawyers, people who insist that law and human rights somehow descend from God, or Nature, or some other, external source and that the function of law is to prepare humanity for some ultimate end or purpose. Think of it as a teleological view.

Fundamentalist Christian and Communist legal scholars often take this view.

The "is" people insist that "what you see is what you get". There is no moral source for law; God has nothing to do with it. Such people are usually "positivists". I count myself in this group.

Both approaches suffer from rather subtle but serious deficiencies. Trouble is, there doesn't seem to be any compromise between the two theories. In cosequence, there really ISN'T a good theory of law out there.

 

Isn't there some old law school dictum that says that if the law's on your side you argue the law but if right is on your side you pound the table and yell like hell?

 

Yup.

If the laws against you, pound the facts.
If the facts are against you, pound the law.
If both are against you, pound the table!