JURISPRUDENCE ON PARADE

Jurisprudence is part of the pageant that makes history. This is a truism that, it may be added, obtains irrespective of the view held as to the significance of general legal theory. To some, the constructs of jurisprudence may seem but laggard symbols of more vital facts and trends. The degree of the lag exhibited by the more celebrated of such constructs may suggest to an anthropologically-minded observer, such as Thurman Arnold, that the apparent function of jurisprudence in the present social climate is neither to represent reality nor to control the administration of justice, but rather by the magic of ritual to lend to the pageant the promise of paradise human beings still desire of the law that they may be reconciled to the uncertainty, confusion, injustice, and frustration of actual life.

On the other hand, those of idealistic bent will, with Holmes, conceive theory as the significant part of law; for these, ideas set the tunes to which the pageant marches. Some of these, perhaps a Kelsen or a Morris R. Cohen, will insist the tunes derive from astral postulates of a metahistorical order, postulates beyond the contingencies of time and space and mysteriously therefore of ultimate significance to the physical world to which law applies. Even on this esoteric view, it is apparent that the categories of jurisprudence are part of their times.