the great and saintly Mahatma of India, once made a characteristic but nonetheless provocative statement about justice: "That action alone is just," he wrote, "which does not harm either party to a dispute." 1 There have been instances in Western jurisprudence in which that Gandhian-essentially Easternunderstanding of justice sometimes surfaces. Several decades ago, Martin Luther King Jr., in a groundswell of Gandhian activism, 2 raised that Gandhian understanding of justice to a position of neardominance in Western thought. It may be no coincidence that both King and Gandhi suffered the same fate for their troubles. Conventional understandings of justice are not easily undone.The conventional understanding on which Western systems of justice seem to be based is difficult to pin down, tied in as it is with the conflicted complexities of pluralist politics and jurisprudence. But playwright Jean Anouilh may have captured the essence of the conventional, and still dominant, Western understanding in his play Becket. Anouilh inserted into the script-just prior to the climactic point of the drama-a point of calm before the storm, a brief l o g o s 7 : 3 s u m m e r 2 0 0 4 logos
2. Natural law jurisprudence suggests the existence of a higher law to which all human law, whether in the form of legislation or case law, is subservient and on which all human law depends for its validity. Natural law jurists purport to discover this higher law in understandings of human nature itself. Natural law jurisprudence has a history of a connection with religious views of law and justice. See, e.g., Thomas Aquinas, Summa theologiae, q. 90-97. In both its later and earlier forms, however, natural law jurisprudence 'existed without reference to religious doctrine. See Marcus Tullius Cicero, On the Commonwealth, Bk. Ill, ch. 13; and Hugo Grotius, De Jure Belli Ac Pacis (1625). Positivist jurisprudence suggests that law is confined to that which is posited or declared to be such by an authority competent to do so. See Jeremy Bentham, An Jntroduction to the Principles of Morals and Legislation (1780). In the context of the issues involved in Roe v. Wade, a natural law approach would find the rights being discussed, whether the pregnant woman's right to privacy in the abortion decision or the right to life of the. fetus or unborn child, in higher-law-type understandings of humanness, without any necessary reference to the Constitution, whereas a positivist approach would, for its conclusions regarding those rights, rely on the concepts and principles which are found in the Constitution, and would eschew any appeal to a higher-law concept. 3. Justice Blackmun, for the majority in Roe, located the right to privacy in the abortion decision "in the fourteenth amendment's concept of personal liberty and restrictions on state action." 410 U.S. 153 (1973).
We all know the story. It is as old as the Bible itself. And it is as new as the Bible itself: These are the families of Noe, according to their peoples and nations. By these were the nations divided on the earth after the flood. And the earth was of one tongue, and of the same speech. And when they removed from the east, they found a plain in the land of Sennaar, and dwelt in it. And each one said to his neighbor: Come, let us make brick, and bake them with fire. And they had brick instead of stones, and slime instead of mortar. And they said: Come, let us make a city and a tower, the top whereof may reach to heaven: and let us make our name famous before we be scattered abroad into all lands. And the Lord came down to see the city and the tower, which the children of Adam were building. And he said: Behold, it is one people, and all have one tongue: and they have begun to do this, neither will they leave l o g o s 6 : 1 w i n t e r 2 0 0 3 off from their designs, till they accomplish them in deed. Come ye, therefore, let us go down, and there confound their tongue, that they may not understand one another's speech. And so the Lord scattered them from that place into all lands, and they left off to build the city. And therefore the name thereof was called Babel, because there the language of the whole earth was confounded: and from thence the Lord scattered them abroad upon the face of all countries. 1 the city of babel: yesterday and today
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