Our era is one in which the law plays a far more important role than at any other time in history, for the law has insinuated itself into the control of almost every facet of man's life. If it was true over a century ago, as Chief Justice Marshall said, that "the judicial department comes home in its effects to every man's fireside; it passes on his property, his reputation, his life, his all,"' it is even more true today as the law has continued to proliferate its influence over an ever-widening range of human conduct. But it is precisely because the law has become such a dominant factor in life that profound questions about its nature have arisen for which the everyday conceptions of law do not provide us with adequate answers.
The dramatic events of recent history which have focused attention again upon the question of law, particularly the rise of totalitarianism, reveal not only the decisive effect of the regime of law upon human life and destiny but also the impotence of contemporary legal theory to cope with the "lawlessness" of law. Even in calmer days, Holmes argued that "theory is the most important part of the dogma of the law,' a view grimly corroborated by one of the great legal minds of modern times, Gustav Radbruch, who, looking back upon the debacle of his country wrote that "the inherited conception of law, the legal positivism that ruled unchallenged among German legal scholars for decades and taught that "law is law"--this view was helpless when confronted with lawlessness in a statutory form.
Samuel E. Stumpf,
Theology and Jurisprudence,
10 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol10/iss5/1