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They detail the rise and characteristics of legal modernity, economic science, corporations as legal opersons,o and the reductionist idea of a single legal order; the shift from the world as a machine to as a network in scientific thought in the 19th and 20th centuries; the state of mechanical jurisprudence; incentive schemes that onaturalizeo this situation; principles needed for the ecological transformation in law, namely disconnecting law from power and violence, making community sovereign, and making property generative; the commons as a legal institution; and basic principles of an ecolegal order.
(108) Classical jurists who proclaimed to merely apply the law to the facts and to function as umpires in constitutional disputes really made policy decisions in stark contrast with the purported restraint of mechanical jurisprudence. In particular, by using theories such as liberty of contract and the affectation doctrine to provide content to the notion of due process, classical Justices actually engaged in policymaking.
Mechanical Jurisprudence and the Guise of Formalism
* Mechanical jurisprudence: What if the chief justice was really a robot?
As for Pound's influential 1908 article, "Mechanical Jurisprudence," which purported to attack the American "jurisprudence of conceptions" in which "everything is reduced to simple deduction" from procrustean, "predetermined" legal ideas, (11) this critique is shown to have been properly directed at a foreign theoretical construct--German legal science, and its scattered academic partisans (pp.
The dogmatization of reality--its reduction to simplistic distortions, even soundbites (e.g., "mechanical jurisprudence" or "activist judging")--is often the way that knowledge is transmitted most effectively and enduringly.
Mechanical jurisprudence was regarded as an antiquarian methodology geared to perpetuating the myth that legal reasoning was autonomous from the economy and political ideology.
Gava's advocacy of mechanical jurisprudence negates the fact that if Justice Kirby left the bench tomorrow his place would be taken by someone incapable of abiding by the canons of neutral, apolitical formalism.
The "mechanical jurisprudence" of the Classical thinkers misrepresented the nature of law in the service of reactionary politics.(19) Courts should defer to legislatures in constitutional cases, should ascertain and promote legislative purpose in interpreting statutes, and should draw on the policies reflected in statute law to sublegislate the fields left by legislatures to common law development.(20) If freely elected and guarded against corruption by special interests, legislators could be counted on to reflect the consensus values of an essentially unified popular sovereign.(21)
(19.) See Roscoe Pound, Mechanical Jurisprudence, 8 Colum.
For while it has been a popular truism that formalism embraced the separation of law and morality through "mechanical jurisprudence,"(13) it has also become equally popular to attribute to formalism a commitment to supranatural principles of law that exist independent of human authority.(14) This latter position is inconsistent with the "sources thesis" of classical positivism and commits formalism to a form of natural law theory similar to Blackstone's.(15) American formalism may have been guilty of many sins, but natural law is not one of them.