[her heroes] could law very well . . . they were tongue-tied when it came to ‘do’ explaining and defending their ingrained habitual doings” (p. 231). Can one really law well without being aware of what one is doing? “do” Many intellectuals, including legal intellectuals, including Glendon, have a outlook. They see the present as a degeneration from a golden past rather than as an evolution from a simpler past. They are thus prone to the fallacy of comparing the best of the old with the average of the new.So James Madison, Abraham Lincoln, Elihu Root, and the cousins Hand are taken to be your typical American lawyers before the Fall and are contrasted with the plaintiff’s lawyer in the amputation case. The clock cannot be turned back, especially to a time that exists only in the imagination. It would be refreshing if leading legal thinkers, rather than pining for a lost yesterday, would think about tomorrow. Glendon is fearful of the ranks of innovators, iconoclasts, and adversarial advocates” in the “swelling profession (p. 102). But it is innovators and iconoclasts, rather than nostalgists and stand-patters, who will adapt the law of today to the challenge of tomorrow. She juxtaposes approving references to Burke’s praise of incrementalism and to the American Founders; but the latter were revolutionaries. She quotes with approval Paul Freunds praise of law as the discipline that us to look “teaches through the great antinomies,” such as liberty and authority, order to “in discover the precise issue in controversy, the precise consequences of one decision or another, and the possibility of an accommodation by deflating the isms and narrowing the schisms” (p. 103).16 This is law conceived pragmatically—and also, one might think, innovatively and even iconoclastically—rather than nostalgically.
[her heroes] could ‘do’ law very well . . . they were tongue-tied when it came to explaining and defending their ingrained habitual doings” (p. 231). Can one really “do” law well without being aware of what one is doing? Many intellectuals, including legal intellectuals, including Glendon, have a outlook. They see the present as a degeneration from a golden past rather than as an evolution from a simpler past. They are thus prone to the fallacy of comparing the best of the old with the average of the new.So James Madison, Abraham Lincoln, Elihu Root, and the cousins Hand are taken to be your typical American lawyers before the Fall and are contrasted with the plaintiff’s lawyer in the amputation case. The clock cannot be turned back, especially to a time that exists only in the imagination. It would be refreshing if leading legal thinkers, rather than pining for a lost yesterday, would think about tomorrow. Glendon is fearful of the “swelling ranks of innovators, iconoclasts, and adversarial advocates” in the profession (p. 102). But it is innovators and iconoclasts, rather than nostalgists and stand-patters, who will adapt the law of today to the challenge of tomorrow. She juxtaposes approving references to Burke’s praise of incrementalism and to the American Founders; but the latter were revolutionaries. She quotes with approval Paul Freunds praise of law as the discipline that “teaches us to look through the great antinomies,” such as liberty and authority, “in order to discover the precise issue in controversy, the precise consequences of one decision or another, and the possibility of an accommodation by deflating the isms and narrowing the schisms” (p. 103).16 This is law conceived pragmatically—and also, one might think, innovatively and even iconoclastically—rather than nostalgically.
The_problematics_of_moral_and_legal_theory_Richard_A__Posner_-_Word%5B1%5D.docx