philosophy of law thesis

Last updated 2nd August 2024: Online ordering is currently unavailable due to technical issues. As we resolve the issues resulting from this, we are also experiencing some delays to publication. We are working hard to restore services as soon as possible and apologise for the inconvenience. For further updates please visit our website https://www.cambridge.org/news-and-insights/technical-incident

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings .

Login Alert

• < Back to search results

Cambridge Studies in Philosophy and Law

• Download list of titles

This series reflects and fosters the most original research currently taking place in the study of law and legal theory by publishing the most adventurous monographs in the field as well as rigorously edited collections of essays. It is a specific aim of the series to traverse the boundaries between disciplines and to form bridges between traditional studies of law and many other areas of the human sciences. Books in the series will be of interest not only to philosophers and legal theorists but also to political scientists, sociologists, economists, psychologists and criminologists.

• General Editors: Gerald Postema , University of North Carolina, Chapel Hill
• Advisory Editors: Jules Coleman , Yale Law School , Antony Duff , University of Stirling , David Lyons , Boston University , Neil MacCormick , University of Edinburgh , Stephen R. Munzer , University of California, Los Angeles Law School , Philip Pettit , Princeton University, New Jersey , Joseph Raz , University of Oxford , Jeremy Waldron , Columbia Law School

Refine search

Actions for selected content:.

• View selected items
• Save to my bookmarks
• Export citations
• Download PDF (zip)
• Save to Kindle
• Save to Dropbox
• Save to Google Drive

Save content to

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to .

To save content items to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle .

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service .

Save Search

You can save your searches here and later view and run them again in "My saved searches".

33 results in Cambridge Studies in Philosophy and Law

Page 1 of 2

• « Prev
• Next »

Common Law Theory

• Douglas E. Edlin
• Published online: 17 September 2009 Print publication: 22 October 2007
• Get access Buy a print copy Check if you have access via personal or institutional login Log in Register
• Export citation
• View description In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world.

Legal Ethics and Human Dignity

• David Luban
• Published online: 22 September 2009 Print publication: 13 September 2007
• View description David Luban is one of the world's leading scholars of legal ethics. In this collection of his most significant papers he ranges over such topics as the moral psychology of organisational evil, the strengths and weaknesses of the adversary system, and jurisprudence from the lawyer's point of view. His discussion combines philosophical argument, legal analysis and many cases drawn from actual law practice, and he defends a theory of legal ethics that focuses on lawyers' role in enhancing human dignity and human rights. In addition to an analytical introduction, the volume includes two major previously unpublished papers, including a detailed critique of the US government lawyers who produced the notorious 'torture memos'. It will be of interest to a wide range of readers in both philosophy and law.

A Common Law Theory of Judicial Review

• The Living Tree
• W. J. Waluchow
• Published online: 09 July 2009 Print publication: 25 December 2006
• View description In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.

Truth, Error, and Criminal Law

• An Essay in Legal Epistemology
• Larry Laudan
• Published online: 05 June 2012 Print publication: 05 June 2006
• View description Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering the first integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial.

Natural Law in Jurisprudence and Politics

• Mark C. Murphy
• Published online: 10 March 2010 Print publication: 13 March 2006
• View description Natural law is a perennial though poorly represented and understood issue in political philosophy and the philosophy of law. In this 2006 book, Mark C. Murphy argues that the central thesis of natural law jurisprudence - that law is backed by decisive reasons for compliance - sets the agenda for natural law political philosophy, demonstrating how law gains its binding force by way of the common good of the political community. Murphy's work ranges over the central questions of natural law jurisprudence and political philosophy, including the formulation and defense of the natural law jurisprudential thesis, the nature of the common good, the connection between the promotion of the common good and requirement of obedience to law, and the justification of punishment.

Punishment, Compensation, and Law

• A Theory of Enforceability
• Mark R. Reiff
• Published online: 15 August 2009 Print publication: 11 July 2005
• View description This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations.

Is There a Right of Freedom of Expression?

• Larry Alexander
• Published online: 07 January 2010 Print publication: 30 May 2005
• View description In this provocative book, Alexander offers a sceptical appraisal of the claim that freedom of expression is a human right. He examines the various contexts in which a right to freedom of expression might be asserted and concludes that such a right cannot be supported in any of these contexts. He argues that some legal protection of freedom of expression is surely valuable, though the form such protection will take will vary with historical and cultural circumstances and is not a matter of human right. Written in a clear and accessible style, this book will appeal to students and professionals in political philosophy, law, political science, and human rights.

Crimes against Humanity

• A Normative Account
• Published online: 23 November 2009 Print publication: 01 November 2004
• View description This book was the first booklength treatment of the philosophical foundations of international criminal law. The focus is on the moral, legal, and political questions that arise when individuals who commit collective crimes, such as crimes against humanity, are held accountable by international criminal tribunals. These tribunals challenge one of the most sacred prerogatives of states - sovereignty - and breaches to this sovereignty can be justified in limited circumstances, following what the author calls a minimalist account of the justification of international prosecution. Written in a clear and accessible style, this book should appeal to anyone with an interest in international law, political philosophy, international relations, and human rights theory.

Norms in a Wired World

• Steven A. Hetcher
• Published online: 05 June 2012 Print publication: 22 March 2004
• View description Social order is regulated from above by the law but its foundation is built on norms and customs, informal social practices that enable people to make meaningful and productive uses of their time and resources. Despite the importance of these practices in keeping the social fabric together, very little of the jurisprudential literature has focused on a discussion of these norms and customs. In Social Norms in a Wired World Steven Hetcher argues that the traditional conception of norms as rule-like linguistic entities is erroneous. Instead, norms must be understood as patterns of rationally governed behaviour maintained in groups by acts of conformity. Using informal game theory in the analysis of norms and customs, Hetcher applies his theory of norms to tort law and Internet privacy laws. This book will appeal to students and professionals in law, philosophy, and political and social theory.

Consent to Sexual Relations

• Alan Wertheimer
• Published online: 04 March 2010 Print publication: 18 September 2003
• View description When does a woman give valid consent to sexual relations? When does her consent render it morally or legally permissible for a man to have sexual relations with her? Why is sexual consent generally regarded as an issue about female consent? And what is the moral significance of consent? These are some of the questions discussed in this important book, which will appeal to a wide readership in philosophy, law, and the social sciences. Alan Wertheimer develops a theory of consent to sexual relations that applies to both law and morality in the light of the psychology of sexual relations, the psychology of perpetrators, and the psychology of the victims. He considers a wide variety of difficult cases such as coercion, fraud, retardation, and intoxication. We can all agree that 'no' means 'no'. This book suggests that the difficult question is whether 'yes' means 'yes'.

Beyond Comparison

• Sex and Discrimination
• Timothy Macklem
• Published online: 05 June 2012 Print publication: 02 June 2003
• View description In Beyond Comparison: Sex and Discrimination Timothy Macklem addresses foundational issues in the long-running debate in legal, political and social theory about the nature of gender discrimination. He takes the highly original and controversial view that the heart of discrimination lies not in the unfavorable comparisons with the treatment and opportunities that men enjoy but rather in a denial of resources and opportunities that women need to lead successful and meaningful lives as women. Therefore, to understand what women need we must first understand what it is to be a woman. By displaying an impressive command of the feminist literature as well as intellectual rigor, this work promises to be a milestone in the debate about gender equality and will interest students and professionals in the areas of legal theory and gender studies.

The Ethics of Deference

• Learning from Law's Morals
• Philip Soper
• Published online: 18 December 2009 Print publication: 24 October 2002
• View description Do citizens have an obligation to obey the law? This book differs from standard approaches by shifting from the language of obedience (orders) to that of deference (normative judgments). The popular view that law claims authority but does not have it is here reversed on both counts: law does not claim authority but has it. Though the focus is on political obligation, the author approaches that issue indirectly by first developing a more general account of when deference is due to the view of others. Two standard practices that political theorists often consider in exploring the question of political obligation - fair-play and promise-keeping - can themselves be seen as examples of a duty of deference. In this respect the book defends a more general theory of ethics whose scope extends beyond the question of political obligation to questions of duty in the case of law, promises, fair play and friendship.

Philosophy and the Law of Torts

• Edited by Gerald J. Postema
• Published online: 01 July 2009 Print publication: 19 November 2001
• View description When accidents occur and people suffer injuries, who ought to bear the loss? Tort law offers a complex set of rules to answer this question, but up to now philosophers have offered little by way of analysis of these rules. In eight essays commissioned for this volume, leading legal theorists examine the philosophical foundations of tort law. Amongst the questions they address are the following: how are the notions at the core of tort practice (such as responsibility, fault, negligence, due care, and duty to repair) to be understood? Is an explanation based on a conception of justice feasible? How are concerns of distributive and corrective justice related? What amounts to an adequate explanation of tort law? This collection will be of interest to professionals and advanced students working in philosophy of law, social theory, political theory, and law, as well as anyone seeking a better understanding of tort law.

The Moral Conditions of Economic Efficiency

• Walter J. Schultz
• Published online: 23 November 2009 Print publication: 18 June 2001
• View description In the late eighteenth century, Adam Smith significantly shaped the modern world by claiming that when people individually pursue their own interests, they are together led towards achieving the common good. But can a population of selfish people achieve the economic common good in the absence of moral constraints on their behavior? If not, then what are the moral conditions of market interaction which lead to economically efficient outcomes of trade? Answers to these questions profoundly affect basic concepts and principles of economic theory, legal theory, moral philosophy, political theory, and even judicial decisions at the appellate level. Walter Schultz illustrates the deficiencies of theories which purport to show that markets alone can provide the basis for efficiency. He demonstrates that efficient outcomes of market interaction cannot be achieved without moral normative constraints and then goes on to specify a set of normative conditions which make these positive outcomes possible.

The Theory of Contract Law

• New Essays
• Edited by Peter Benson
• Published online: 05 October 2009 Print publication: 05 February 2001
• View description Although the law of contract is largely settled, there appears to be no widely-accepted comprehensive theory of its main principles and doctrines or of its normative basis. Contract law theory raises issues concerning the relation between law and morality, the role and the importance of rights, the connection between justice and economics, and the distinction between private and public law. This collection of six full-length essays, written by some of the most eminent scholars in the field, explores the general theory of contract law from a variety of theoretical perspectives. The volume addresses a wide range of issues, both methodological and substantive, in the theory and practice of contract law. While the essays build upon past theoretical contributions, they also attempt to take contract theory further and suggest promising ways to develop theory of contract law.

• Ethics and Law for a Collective Age
• Christopher Kutz
• Published online: 18 March 2010 Print publication: 09 October 2000
• View description We live in a morally flawed world. Our lives are complicated by what other people do, and by the harms that flow from our social, economic and political institutions. Our relations as individuals to these collective harms constitute the domain of complicity. This book examines the relationship between collective responsibility and individual guilt. It presents a rigorous philosophical account of the nature of our relations to the social groups in which we participate, and uses that account in a discussion of contemporary moral theory. Christopher Kutz shows that the two prevailing theories of moral philosophy, Kantianism and consequentialism, both have difficulties resolving problems of complicity. He then argues for a richer theory of accountability in which any real understanding of collective action not only allows but demands individual responsibility.

The Jurisprudential Foundations of Corporate and Commercial Law

• Edited by Jody S. Kraus , Steven D. Walt
• Published online: 22 September 2009 Print publication: 02 October 2000
• View description This collection, first published in 2000, brings together essays by some of the most prominent scholars currently writing in commercial law theory. The essays address the foundations of efficiency analysis as the dominant theoretical paradigm in contemporary corporate and commercial law scholarship. Some of the questions addressed in the volume are: What are the historical roots of efficiency analysis in contract, sales, and corporate law? Is moral theory irrelevant to efficiency analysis in these areas; if relevant, are morality and efficiency compatible? Even if efficiency is otherwise reasonable as a normative goal in corporate and commercial law, does the complexity of efficiency make it practical to administer in adjudication? What is the best way of pursuing efficiency in corporate and commercial law? The volume reflects the most exciting work being done in contemporary legal theory. It will be of interest to professionals and students in law and philosophy of law.

Objectivity in Law and Morals

• Edited by Brian Leiter
• Published online: 06 October 2009 Print publication: 02 October 2000
• View description The seven original essays included in this volume from 2000, written by some of the world's most distinguished moral and legal philosophers, offer a sophisticated perspective on issues about the objectivity of legal interpretation and judicial decision-making. They examine objectivity from both metaphysical and epistemological perspectives and develop a variety of approaches, constructive and critical, to the fundamental problems of objectivity in morality. One of the key issues explored is that of the alleged 'domain-specificity' of conceptions of objectivity, i.e. whether there is a conception of objectivity appropriate for ethics that is different in kind from the conception of objectivity appropriate for other areas of study. This volume considers the intersection between objectivity in ethics and objectivity in law. It presents a survey of live issues in metaethics, and examines their relevance to theorizing about law and adjudication.

The Path of the Law and its Influence

• The Legacy of Oliver Wendell Holmes, Jr
• Edited by Steven J. Burton
• Published online: 22 October 2009 Print publication: 18 May 2000
• View description Oliver Wendell Holmes, Jr. (1841–1935) is, arguably, the most important American jurist of the twentieth century, and his essay The Path of the Law, first published in 1898, is the seminal work in American legal theory. In it, Holmes detailed his radical break with legal formalism and created the foundation for the leading contemporary schools of American legal thought. He was the dominant source of inspiration for the school of legal realism, and his insistence on a practical approach to law and legal analysis laid the basis for the realists' later concentration upon the pragmatic and empirical aspects of law and legal procedures. This volume brings together some of the most distinguished legal scholars from the United States and Canada to examine competing understandings of The Path of the Law and its implications for contemporary American jurisprudence. For the reader's convenience, the essay is republished in an Appendix.

Moral Combat

• The Dilemma of Legal Perspectivalism
• Published online: 05 November 2011 Print publication: 28 March 1999
• View description This book explores the thesis that legal roles force people to engage in moral combat, an idea which is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids. The 'role-relative' understanding of morality is shown to be incompatible with both consequentialist and deontological moral philosophies. In the end, Hurd shows that our best moral theory is one which never makes one actor's moral success turn on another's moral failure. Moral Combat is a sophisticated, well-conceived and carefully argued book on a very important and controversial topic at the junction between legal and political philosophy. It will be of interest to moral, legal, and political philosophers, as well as teachers and students of professional ethics in law.

Email your librarian or administrator to recommend adding this to your organisation's collection.

• History & Society
• Science & Tech
• Biographies
• Animals & Nature
• Geography & Travel
• Arts & Culture
• Games & Quizzes
• On This Day
• One Good Fact
• New Articles
• Lifestyles & Social Issues
• Philosophy & Religion
• Politics, Law & Government
• World History
• Health & Medicine
• Browse Biographies
• Birds, Reptiles & Other Vertebrates
• Bugs, Mollusks & Other Invertebrates
• Environment
• Fossils & Geologic Time
• Entertainment & Pop Culture
• Sports & Recreation
• Visual Arts
• Demystified
• Image Galleries
• Infographics
• Top Questions
• Britannica Kids
• Saving Earth
• Space Next 50
• Student Center
• Introduction

General considerations

Ancient greece.

• Rome and the Middle Ages
• The command theory of law
• The common-law theory of law
• Thomas Hobbes
• Jeremy Bentham
• John Austin
• Hans Kelsen
• H.L.A. Hart
• Ronald Dworkin
• John Finnis
• The problem of the Nazis
• Karl Llewellyn

• Why is Jean-Jacques Rousseau famous?

philosophy of law

Our editors will review what you’ve submitted and determine whether to revise the article.

• Stanford Encyclopedia of Philosophy - The Nature of Law
• Internet Encyclopedia of Philosophy - Philosophy of Law
• Table Of Contents

philosophy of law , branch of philosophy that investigates the nature of law , especially in its relation to human values, attitudes, practices, and political communities . Traditionally, philosophy of law proceeds by articulating and defending propositions about law that are general and abstract—i.e., that are true not of a specific legal system at a particular time (e.g., the United Kingdom in 1900) but of all legal systems in the present or perhaps of all laws at all times. Philosophy of law often aims to distinguish law from other systems of norms, such as morality ( see ethics ) or other social conventions. Views about the nature of law often depend upon, and occasionally have contributed to, answers to some of the most-fundamental philosophical questions—for example, regarding the foundations of morality, justice , and rights ; the nature of human action and intention ; the relations between social practices and values; the nature of knowledge and truth ; and the justification of political rule ( see political philosophy ). The philosophy of law is therefore an integral part of philosophy more generally.

Whereas law as a means of governance of human communities dates back to at least 3000 bce in ancient Egypt , sustained and systematic philosophical reflection on its nature for which there is surviving evidence began only in the late 5th century bce in ancient Greece and nearby areas of the Mediterranean, not long after the birth of Western philosophy itself. From that point onward, a more or less continuous history of such reflection can be traced up to the present day. As is true with the history of philosophy more generally, one can observe over the centuries changes not only in the theories set forth but also in the central questions about law that such theories were meant to answer.

Although every philosophical theory is in part a product of the time, place, and culture in which it is developed, the philosophy of law is parochial in an additional sense. Philosophical speculation about the nature of law not only is very often shaped by the politics of the time and place of a given theorist but is also carried on with a specific sort of legal system and legal culture in view. The latter fact is important, as the kinds of legal systems in Europe and the Anglophone world have varied widely through the last several millennia. Although the shape and structure of those systems cannot be discussed in any detail here, it should nonetheless be noted that a robust understanding of each of the major theories and texts in the history of philosophy of law requires some acquaintance with the legal systems of the cities and states in which a given theory was developed. For example, the centrepiece of the legal system of Aristotle’s Athens was a representative legislative body, the Ecclesia , in which a wide variety of political disputes were debated and addressed by statute, while its court system was, though important, very rudimentary by modern standards (it was governed by largely customary procedural rules and administered by ordinary citizens, as there were no judges, lawyers, or other legal professionals during that period). As a result, Aristotle theorized about law primarily on the model of general rules of action enacted by legislation and revisable by direct vote or other plebiscitary means. To take a different example, starting in the 17th century many British (and later other Anglophone) philosophers of law argued for the central importance of judicial institutions for the very existence of a legal system and debated the idea of legal reasoning as a distinct sort of deliberative activity. More recently, increasing attention has been paid to the related question of how the language of the law is to be correctly interpreted. Some theorists, beginning in the early 20th century, even found it fruitful to think about the nature of law primarily from the point of view of legal professionals such as judges or lawyers. That development is surely to be at least partly explained by the fact that those theorists reflected on law almost exclusively within advanced common law systems—i.e., those legal systems found throughout the Anglophone world (and now beyond) in which specially trained lawyers argue on behalf of the interests of clients in court and elsewhere and in which judges often play a quasi-legislative role in fashioning legal rules in the form of precedents, which are binding on later courts for the purposes of deciding future cases.

The abstract concept of law is acknowledged, though not discussed, in the poems of Homer and Hesiod in the 8th–7th century bce . In the Greek histories and literature of the 6th and 5th centuries bce , however, one finds the first articulation of ideas about law that have had enduring influence in the West: that law is a kind of command or prohibition with regard to what its subjects ought to do and that law is often accompanied by at least the threat of punishment or coercion by the state. Herodotus (born about 484 bce ), in his History of the Greco-Persian Wars , records a Spartan king remarking to the king of Persia that the Greeks “are free, yet not wholly free; law is their master, whom they fear much more than your men fear you. They do whatever it bids.” The historian Xenophon ( c. 430– c. 350 bce ) relates in his Memorabilia a likely apocryphal conversation between a young Alcibiades and his guardian, the great Athenian statesman Pericles , in which the latter declares that “whatever the sovereign power of the state, having deliberated, enacts and directs to be done is known as law” and denies that mere compulsion exerted by a tyrant is sufficient to qualify as law. The great dramatist Sophocles , in his tragedy Antigone , first made salient the important idea that the requirements of law and morality may conflict. In the play, King Creon orders the body of Antigone’s brother to remain unburied as a posthumous punishment for treason . Out of familial duty, Antigone flouts the order and buries the body, thereby herself risking punishment by death. She rejects the king’s legal authority, saying that even he “could not override the unwritten and unfailing laws given us by the gods.”

But it is Plato (428/427–348/347 bce ), writing during the decline of the Athenian empire, who was the first to advance philosophical claims about the nature of law. The relevant Greek term, nomos , varied widely in meaning across contexts , often referring simply to convention or practice. But by Plato’s time it had acquired the more-specific sense of a statute or a proclaimed or written directive that established a standard for human action. In his dialogue Crito , Plato fictionally cast his teacher, Socrates , imprisoned and sentenced to death (for impiety and corrupting the young), as faced with a choice between accepting the death penalty and escaping, thereby disobeying the law. In the dialogue Socrates makes the provocative argument, on behalf of the laws of Athens, that since he has received the benefits and protections of living under law for his entire life and has never left the city out of protest, he is obligated either to obey its laws or to persuade the state that they should not be enforced against him. Since he has failed (at his trial) in the latter task, he must respect the laws by obeying their commands, regardless of their content.

Plato’s dialogue Crito is the origin of several enduring ideas in the philosophy of law, such as that the law by nature claims authority over its subjects and that the very relationship between law and its subjects somehow gives rise to an obligation of obedience. Plato’s later work makes scattered reference to law but fails to articulate a robust philosophy of law in the modern sense; what is thought to be his last work, Laws , contains many specific proposals for reforming the laws of his time but curiously fails to grapple with broader philosophical questions.

A generation later, Plato’s student Aristotle (384–322 bce ) gave more-systematic expression to a number of influential ideas about law. Aristotle famously said that humans are “political animals,” meaning that they naturally organize themselves into distinct sorts of communities, the largest of which is the city, or city-state (in Greek, the polis ). Cities are characterized by their politeia , a word that is often translated as “constitution” but in fact refers to any general way in which a large human community may organize itself. Law, Aristotle said, is “a sort of order” and thus provides a comprehensive framework of rules and institutions through which a society is constituted . A law (e.g., a statute) is by nature universal in form: it is a standard of conduct that applies generally, in respect of both the classes of persons and the types of conduct it governs. Because of its universal nature, a law can sometimes fail to apply, or apply only indeterminately, to a novel case unforeseen by the legislator. The problem here, Aristotle said, is not in the law or in the lack of foresight by the lawmaker but rather in the “nature of the case.” In such cases, what is required is a corrective exercise he called “equity,” which involves speculating about how the deficient law would have applied had the lawmaker considered the novel case and then applying the law accordingly.

Aristotle was also the first to articulate what has come to be known as the ideal of the rule of law . He shared the common Greek view that, as a general principle, law had a share in eternal divine wisdom. As such, it was an instrument by which to constrain the exercise of political power, particularly that of tyrants, whose policies represented only their own interests and not the good of the community. On the (even by then) age-old debate as to whether the best law or the best person should rule a city, Aristotle’s position was clear: “He who asks law to rule is asking God and intelligence and no others to rule, while he who asks for the rule of a human being is importing a wild beast too.…Law is intelligence without appetite.”

Journal for Constitutional Theory and Philosophy of Law / Revija za ustavno teorijo in filozofijo prava

Home Numéros 34 Legal Methodology Legal philosophy as practical phi...

Legal philosophy as practical philosophy

My purpose in this paper is to make a case for the strictly philosophical nature of our discipline, legal philosophy. I first take a prior stance on the issue of what philosophy is in general and outline some premises for the definition of philosophical rationality. This then leads me to critically examine Bobbio’s dichotomy between jurists’ legal philosophy and philosophers’ legal philosophy. It is essential to reformulate the relationships between legal philosophy as a “special” or “regional” discipline as opposed to “general” philosophy. So thirdly, I re-examine this problem using the distinction between concepts of law and ideas in law. Fourthly, I defend the thesis that, when ascertaining the type of philosophy the philosophy of law is, the most decisive factor is not so much (or not only) the relationship between philosophy of law and philosophy in general as, more importantly, the relationship between it and law itself. I argue that the nature of law itself makes its practice inevitably and ineluctably associated with philosophical ideas and conceptions. This practical view of law is tightly bound with a view of legal philosophy as a practical philosophy, and this is the main thesis I shall defend here. Different expressions of this practical view of law can be found in prominent contemporary authors who go beyond the dichotomy of legal positivism-natural law (such as Nino, Alexy, Dworkin, Atienza). The essential feature which I regard ties philosophy of law to the condition of some “practical philosophy” is the role played by the concept of value, i.e. the centrality and pre-eminence of its evaluative dimension .

Index terms

Keywords: , 1 introduction.

1 Anyone grappling with the problem of the status and justification of the “Philosophy of Law” as a philosophical discipline has to address a series of extraordinarily intricate problems. The first problem is that of explaining why the institutionalisation of the discipline is so characteristically modern : did Hugo’s Philosophie des positiven Rechts (1798), Austin’s Philosophy of Positive Law ( 1861 ) and Hegel’s Philosophie des Rechts ( 1821 ) truly herald a new discipline or simply a new name for a kind of philosophical reflection that was already ancient and traditional? This problem depends on one’s philosophical stance on natural law.

2 The second problem relates the historical and thematic bifurcations characteristic of our discipline: first, the bifurcation stemming from the opposition between “jurists’ legal philosophy” and “philosophers’ legal philosophy” (Bobbio 1990) and, secondly, the bifurcation resulting from the opposition between “philosophy of law” versus “theory of law”. This problem depends on one’s philosophical stance on legal positivism.

3 In this paper, I plan to focus primarily on the second problem. My purpose is to make a case for the strictly philosophical nature of our discipline. This means that I must first take a prior stance on the issue of what philosophy is in general, outline the minimal premises for the definition of philosophical rationality and establish a meta-theoretical classification of the genres of philosophical discourse (Sec. 2). This will then lead me to undertake a critical examination of Bobbio’s dichotomy between jurists’ legal philosophy and philosophers’ legal philosophy (Sec. 3). Thirdly, it is essential to tackle the thorny issue of reformulating the existing relationships between legal philosophy as a “special”, “sectorial”, “applied” or “regional” discipline as opposed to a “general” (or “pure”, “fundamental”, “essential”, etc.) philosophy. Here we find a convergence between the generic problem of what the “parts” of philosophy are, in the general sense of the discipline (logic, epistemology, ethics, anthropology, natural philosophy, etc., even though they themselves are also often seen as “special” philosophies) and the specific problem posed by a philosophical discipline which is, furthermore, explicitly “centred” around a particular institution associated with concepts of its own, as is the law (in this it is comparable to other “philosophies of”: philosophy of religion, philosophy of art, philosophy of history, etc.). I shall re-examine this problem using the distinction between concepts of law and ideas of law (Sec. 4). Fourthly, I shall defend the thesis that, when ascertaining the type of philosophy the philosophy of law is —or should be—, the most decisive factor is not so much (or not only) the relationship between philosophy of law and philosophy in general as, more importantly, the relationship between it and law itself (Sec. 5). I argue that the nature of law itself makes its practice inevitably and ineluctably associated with philosophical ideas and conceptions. This practical view of law is tightly bound with a view of legal philosophy as a practical philosophy, and this is the main thesis I shall defend here. Different expressions of this practical view of law can be found in prominent contemporary authors who go beyond the dichotomy of legal positivism-natural law (such as Nino, Alexy, Dworkin, Atienza). The essential feature which I regard ties philosophy of law to the condition of some “practical philosophy” is the role played by the concept of value, i.e. the centrality and pre-eminence of its evaluative dimension. The fundamental ideas of the philosophy of law are thus values, in the sense of practical ideas (Sec. 6) . Hence, legal philosophical discourse has to remain close to the practice of law and is necessary for it. What gives legal philosophy a special place (even a kind of “pre-eminence”) within the general realm of practical philosophy is its privileged perspective on practical fundamental values (that is, moral and political values), due to its proximity to the practice of law, which is the institution whose mission is precisely to reconcile conflict and restore the unity of these values in justifiable and argumentative terms. This approach allows us to go beyond the dichotomy between natural law (that claims that values constitute the ultimate underpinning of law, but in the sense of a dogmatic or metaphysical philosophy) and legal positivism (defined by evaluative distance and neutrality regarding law, but in a sceptical or relativistic sense, postulated more as a scientific than as a strictly philosophical discourse of law).

2 A general conception of philosophy

1 Atienza (1989: 371); see also Díaz (1992: 334, 369).

2 Bueno (1970; 1999).

4 I will adopt the view of the philosophy of law as the “rational and critical totalisation of the phenomenon of law”, as suggested by Manuel Atienza. 1 The key to this conception (which was inspired by the Spanish philosopher Gustavo Bueno) 2 lies in the distinction between concepts and ideas . Concepts are inherent to the sciences (in a broad sense, including technical fields), while ideas are the very stuff of philosophy. Both —scientific concepts and philosophical ideas— are “critical totalisations” (“criticism” is not exclusive to philosophy) and both encompass universality. However, the totalisation and universality of ideas is not the same as, and cannot be reduced to the totalisation of concepts. Philosophical problems abide by their own format: they are neither technical nor scientific problems, but rather emerge directly or spring up at the same time as technical or scientific problems, representing a second degree of reflexivity. Philosophy is not an original or “first-degree” body of knowledge. It is independently justified as a unique, substantive body of knowledge and cannot be reduced either to simple “adjectival” knowledge, doomed to be “liquidated” by the sciences; or “genitive” knowledge, confined to a simple logical analysis or encyclopaedic synthesis in relation to scientific knowledge. Nor, obviously, can it be reduced to some kind of “dogmatic” or “metaphysical” knowledge, disconnected from the sciences.

• 3 However, “transcendentality” would then have not an aprioristic or metaphysical meaning (as it doe (...)

5 Without question, the sciences are the most universal exponent of knowledge at our disposal. However, theirs is a universality that is restricted or bound to certain conceptual domains (or “universes of discourse”) which are more or less closed according to objective theories and laws. Following a traditional nomenclature, Bueno called these domains “categories”: the physical, chemical, mathematical, anthropological, sociological, psychological and other categories. Scientific concepts (including techniques and technologies) would be universal relative to or within each of these categorical domains, filtering out everything that is conceptually irrelevant, or external to them. However, for this very reason, everything that can be said rationally about each category individually or about all of them together (i.e., on the conceptualisation of the world) would not be exhausted . Thus, at the very least, questions such as the relationships between these diverse categories (how many sciences there are and how they differ among each other), their scope (how far the universality of each science stretches) and their validity (what it means to consider a given scientific knowledge universally grounded) could no longer be resolved from inside the categories themselves, as they do not constitute scientific or technical problems to be analysed using their own conceptual instruments. On the contrary, they require a different kind of rational treatment, a totalisation of a different type, one that is also universalist. And this, precisely, is what philosophical discourse is. There would then be another genre of “second-tier” concepts, the universality of which cross-cuts and cannot be reduced to the categorical concepts. These are transcendental concepts in that they “transcend” each of the categories, but not all of them as a whole (just like the three classical ideas of traditional metaphysics laid out by Kant in his first Critique ). 3 These concepts could actually be called philosophical ideas , once again following a tradition that begins with Plato and reaches down to Kant and Hegel, although this does not mean that we are required to adhere to the traditional idealist conception of metaphysics. Ideas are neither separated forms , nor a priori units of knowledge , nor figures of an unfolding Spirit ; rather, they can be viewed as ideas in an historical-cultural sense, bearing in mind that although associated with “ideologies” in the Marxist sense, they cannot be understood merely as ideological-conjunctural contents either. Philosophical theories are therefore nothing other than more or less systematic elaborations and interpretations of these ideas throughout their historical development. They thus reflect problems which have been sparked repeatedly by the concepts of the sciences, yet they resist being equated with or reduced to mere scientific or technical problems. As they involve ideas and not only concepts, philosophical problems truly have their own format. They are not resolved by the sciences or techniques but instead reframed by them (hence their historical persistence). A philosophical problem is characterised primarily by the fact that it questions an entire category as a whole, and does so in a particular way, connecting it to others and inquiring into its foundations and validity. This is what happens, for example, with epistemological and ontological questions, which question how categories represent or conceptualise the world and how the world is represented or conceptualised by them. The answer to this requires a kind of totalising reflection which encompasses criticism —that is analysis, comparison, classification, setting limits— of the scientific concepts themselves according to more or less systematic general conceptions which deal with epistemological ideas (a certain theory of science or of knowledge) and ontological ideas (a certain theory of the elements which make up the real).

6 So how does this “critical totalisation” translate in relation to law when defining legal philosophy? Firstly, we have to specify the meaning of this notion of “totalisation”, and then we must be able to give precise meaning to the cliché of the “critical” nature of the philosophy of law.

7 Regarding the former, Atienza specifically associates the meaning of this totalisation with the transcendental and inter-categorical nature of legal philosophy. Thus, he maintains that “the essential function of philosophers of law should be that of acting as ‘intermediaries’ between legal knowledge and practices on the one hand and all other social practices and knowledge – including philosophy – on the other”, and that “its place lies precisely in the frictions and vacuums produced by their functioning and interaction. Therefore, legal philosophy may claim to be a totalising knowledge inasmuch as its points of departure and arrival are these other knowledges and practices (Atienza 2015: 5).

8 Regarding the latter, Atienza assumes that the critical dimension of legal philosophy stems from the fact that it adopts “a perspective that does not match that of those who are situated inside each of these parcels, as the philosopher of law can and should question the established frameworks, an approach forbidden to one who operates exclusively from inside a given science or technique (who, naturally, does not relinquish a critical approach but rather exercises it differently)” ( Atienza 2015: 5 ).

9 Both features, as we can see, are largely similar. And both lead us to pose the same problem: how is it possible for the philosophy of law, which is “focused” on a single category, to be genuinely “philosophical”, that is, for it to be a totalising-critical (transcendental or cross-categorical) discourse? In other words, if what makes legal philosophy a unique and specific discourse is its “cross-categorical” or “transversal” nature in relation to the different conceptualisations of the phenomenon of law —both internal and external to the legal category— how can it still be a “regional” philosophy in the twofold sense of being a philosophy distinct from “general” philosophy while also being “local” or “particular” in nature (that is, associated with legal discourse, a discourse which is obviously used locally and particularly)? How could these two characteristics be made compatible: its “genitive” legal nature and its universal or philosophically “transcendental” nature?

3 Jurists’ legal philosophy and philosophers’ legal philosophy

• 4 “What is there to be said about the ‘nature’ of legal phenomena beyond that which emerges from the (...)
• 5 “It is understood that the preference for the works of jurists who raise themselves to philosophy (...)

10 This leads us to a related problem —famously posed by Bobbio— which is the controversial duality between jurists’ legal philosophy and philosophers’ legal philosophy. This problem stems from the fact that the tradition of Western philosophical thinking on law has historically occurred in a “bifurcated” fashion: by philosophers who come to law from their omni-comprehensive systems of ideas seeking to fit it into them, and by jurists who somehow draw from certain general philosophical frameworks to construct theories that are also omni-comprehensive, but whose scope primarily falls within the field of law, or which are essentially focused on reflecting and developing legal categories. We can easily illustrate this bifurcation by contrasting Aristotle and Cicero in the ancient world; Augustine and Gratian or Thomas Aquinas and Bartolus in the Middle Ages; and “philosophers’ natural law” (Suárez, Leibniz) and “jurists’ natural law” (Grotius, Thomasius) in the modern period. Ever since philosophy of law emerged as a new discipline in the contemporary era —replacing natural law, which was, in fact, legal philosophy— it has been cultivated almost exclusively in law faculties instead of in philosophy faculties. That is, its main practitioners are jurists. This, coupled with academic specialisation, has increased the endogamous bias of legal philosophy (as well as the isolation of general philosophy from the “closed garden” of law, in Bobbio’s words). However, it is true that legal philosophers have continued to draw from general philosophies, both current and past (thus, Kelsen cannot be understood without Kant, Hart without Wittgenstein, Finnis without Thomas Aquinas, Alexy without Habermas, hermeneutics without Gadamer), which nonetheless are given a new and different dimension, driven by a reflexive interest in the law and in developments in legal practice (thus, Kelsen has said much more about legal duty than the neo-Kantians, and the same holds true of Hart compared to Wittgenstein on legal rules, and Alexy on the theory of legal discourse compared to Habermas). Therefore, the relationship between the two —“regional” legal philosophy and general philosophy— is a complex one. It is primarily couched in truly controversial terms because of the fact that, after the decline of natural law, the entrenchment of legal positivism as a core, dominant vein in contemporary legal thinking went hand-in-hand with a parallel tendency to liquidate the substantive aspect of philosophy (a feature it shares with both general 19 th -century positivism and neo-positivism). This is yet another case of what Bueno (1970: 56) calls the “positivistic death” of philosophy. In this way, the philosophy of law claims to be a discourse “by and for jurists” instead of “by and for philosophers”: that is, a technical-practical discourse inherent to the category of law. Even the nomen “philosophy of law” is disappearing, dissolving into the more generic “theory of law”, the latter (in the continental tradition) meant as a discipline with primarily scientific 4 or doctrinal pretensions —a “high dogmatics” constructed in the mould of the positivistic Allgemeine Rechtslehre — or (in the Anglosaxon tradition) jurisprudence . That is to say, it is a legal-categorical rather than a “philosophical” discourse in both cases. Legal positivism, in Radbruch’s celebrated words, thus “euthanizes” philosophy of law in that the latter sees itself as “part” of a “previously given” philosophical system in the traditional style. It is not philosophy which determines the unity of ideas in a “top-down” reflection on the law, but rather categorical legal experience, inasmuch as it provides the materials for “bottom-up” building, as Bobbio claims. 5

• 6 Bobbio’s core argument is that even though it may be more analytical than synthetic and have philo (...)

7 The expressions are drawn from Cotterrell 2014.

11 The preference for jurists’ philosophy of law is unquestionably backed by an extraordinarily powerful argument: the empirical reference to the legal category, to legal positivistic concepts and to the real practice of law. Legal philosophy should be a “philosophy of positive law” built upon the problems faced by contemporary states governed by the rule of law, along with their complex technical legal-administrative organisation or progressive constitutionalisation, as opposed to a speculative or unproductive reflection (metaphysical or dogmatic). 6 However, the issue is whether this proximity to legal categorical experience may not also act as an obstacle —and not necessarily an advantage— to constructing a truly philosophical-critical discourse around the law. That is, the question is whether self-understanding of the philosophy of law as a “jurists’ philosophy” cannot also lead it to become ancilla iurisprudentiae , in a reflection indistinguishable from that of legal specialisation, a mere professional propaedeutics, a philosophical patchwork or bricolage adjunct to jurisprudence, 7 in short, yet another part of legal ideology in the broad (though not necessarily negative) sense. This situation could be compared, mutatis mutandis , to that which entails simply admitting that the philosophy of religion only makes sense when made by, and when serving, the adepts or theologians of a given denomination. This risk of “dogmatism” has not only been fostered by the discipline’s aforementioned specialisation and institutional location, but also largely by the methodology of legal positivism, in which the prioritisation of the doctrinal (or “internal”) point of view has led the concept of law to become insular and detached from other categories, both social-scientific and political-moral. The thesis of the separation between law and morality, the “purity” of the theory of law, the neutral descriptive or evaluative study of “what law is” instead of what it “ought to be”, and the consideration of all “external” perspectives as irrelevant to jurists, are well-known expressions of this methodology, which leads one to conclude that the philosophy of law must be alien to moral philosophy, political philosophy, social philosophy and the like. In other words, legal philosophical discourse is doomed to be relevant only to jurists rather than a subject of interest to “philosophers” or one about which they have anything interesting to say.

• 8 Judging from the names he mentions (Hobbes, Ihering, Gény, Ehrlich, Kelsen, Kantorowicz, Ross, Har (...)
• 9 A similar three-way division can be found in Oakeshott 2007 when he talks about legal philosophy a (...)
• 10 Some people have even dismissed positivistic legal philosophy with an analytical orientation as “s (...)

11 Kant (1798) 1968b: 28.

12 And this is the core point that I wish to discuss with regard to the need to rethink and redefine the status of the philosophy of law. Not just any discourse about law can genuinely be called philosophical, even if it bears this name, nor can all philosophical discourse about law be labelled dispensable or dogmatic as such. The contrast that Bobbio formulated is actually based on a false dilemma. The aprioristic dismissal of “philosophers’ philosophies of law” is gratuitous: it is not actually targeted against “philosophy” itself but against a particular philosophy whose assumptions or theses are deemed dogmatic, scholastic or metaphysical by another particular philosophy (in the case of Bobbio, from legal positivism). 8 Likewise, the preference for “jurists’ philosophy of law” can (and in my opinion, should) be accepted without this meaning embracing an insular or purely endo-legal approach. Legal philosophy can only be truly philosophical if it is critical in nature, and this means that it must be positive but not positivistic, associated with the concept of legal experience but not dogmatic, coextensive with practical legal discourse but not merely “genitive”. That is, it requires an inter-categorical perspective, a “totalisation” which results in making relevant connections between the legal category and other categories. 9 This is the path followed by the post-positivistic philosophy of law. But this totalisation can only occur in terms of ideas and theories that must necessarily be drawn from a general philosophical conception, and this means that all legal philosophy (including positivistic legal philosophy) 10 is the “application” of philosophemes. In consequence, to paraphrase Kant, it is not clear whether “the servant”, i.e., philosophers’ legal philosophy, “is the mistress’s torchbearer or train-bearer”. 11

13 According to the approach posited above, the philosophy of law —just like any other philosophical discipline— should refer to philosophical ideas which form the common thread binding regional philosophy to general or transcendental philosophy. These ideas would essentially be of two kinds: epistemological and ontological. Thus, the philosophical method is one and the same (regardless of whether it is practised by jurists or philosophers) and can only consist of this twofold movement which starts from the categorical concepts (or the problems caused by them, which we shall discuss below), analyses them in terms of second-order ideas or concepts, and then returns back to them to offer a new synthesis or re-composition in light of a conception that forges relevant (inter-categorical) relationships among them. Thus, if these are the two methodological or dialectical moments of philosophical rationality — regressus and progresssus — it is simply because the categorical concepts can be analysed either according to the relationships among each category and the kind of knowledge or conceptualisation that fit within them (the kinds of knowledge, studies, sciences, etc.) or according to the relationships among those kinds of knowledge and the categorical realities to which they refer (what domain of the world they encompass, what entities they attest to, what connections or laws they determine, what kind of objectivity they allow for, etc.). Put more simply and applied to the matter at hand: legal philosophy devises a map of legal knowledge and realities.

4 The law: concept or idea?

• 12 By “dogmatic philosophy” I mean any kind that envisions itself not as a reflective, secondary know (...)

14 We have said that what justifies the substantiveness of the philosophical perspective is the need that emerges, within the internal conceptualisation of a given category, for a second-order totalisation in terms of omni-comprehensive ideas or schemes that go beyond such a category —critically— and connect it to other categories or concepts. However, the goal is not simply to “apply” this understanding of philosophical rationality to the philosophy of law. This would be the error of a dogmatic (aprioristic or metaphysical) conception of philosophy, as Bobbio correctly pointed out. 12 Instead, the goal is to show how this kind of rationality is, and always has been, present in the philosophy of law itself (just like in any other philosophy) once the philosophical method is being put into practice. Indeed, the presence of the same method of rationalising legal phenomena following a two-way path between the categories or concepts of law and certain philosophical ideas has been in constant practice in legal philosophy ever since ancient Greece. Even though in the Natural Law, Kantian and Hegelian traditions, this has tended to be limited to a single idea, i.e. justice, in contrast to the “concept” of law, it is nonetheless unjustified: the repertoire of legal-philosophical ideas is much broader and encompasses all legal-categorical concepts. We could claim that the inner structure of these concepts is already constituted by philosophical ideas. Philosophy of law does not “create” the ideas but finds them already operating in law and then proceeds to organise and systematise them “on a second tier”, rather than “apply” them top-down.

• 13 This can be seen, for example, in Raz’s distinction between the “concept” and the “nature” of law (...)

15 This also makes it possible to grasp the fact that legal philosophy has always been a legally implemented philosophy, i.e., a system of ideas with either a revolutionary or emancipating purpose or a conservative and legitimising purpose with respect to the legal realities in any given period of time. This is a very important aspect of what it means to be a practical philosophy. Both the philosophical methods and the objective ideas with which it works have taken on different meanings in law through the very evolution of legal forms. Philosophy of law has always kept in line with the historical development of legal phenomena. This is how the historical relationships between Roman law and mediaeval ius commune or common law and Aristotelian-Scholastic philosophy can be interpreted. Incidentally, Bobbio’s omission of Aristotle is particularly glaring, as he is the source of the very idea of jurisprudence , which underlies a significant epistemological understanding of the theory and practice of law common to all Western traditions. Another illustration of this common evolution is the relationship between rational legal philosophy and Enlightenment philosophy with regard to the historical process of State formation, and the positivisation of modern national law. In both examples we can find jurists’ —and not just philosophers’— (natural-law) philosophies. And so we can understand that if the philosophy of law has emerged with this name precisely in the modern period, associated with the conglomerate of doctrines which we call “legal positivism”, this is because positive law itself has substantially transmuted its configuration and structure, thus calling for a new theoretical reflection. Thus, paraphrasing Hegel, legal philosophy could be defined as a legal era captured in thinking, that is, in ideas, beginning with the very general conception of law, which should then not be a concept but rather a philosophical idea . 13

16 If we accept a functional-historical conception of legal philosophy such as the one outlined above —that is, not a metaphysical or dogmatic one— we can see that the organisation of its inherent ideas has to be sought not so much from within (or in the “philosophers’” philosophy) as from the categorical reality which it seeks to analyse, i.e. the law itself. This is a consequence of understanding that the ideas we are discussing exist within the historical and social process (unlike any aprioristical metaphysics), and that they do not belong to an ideal topos uranos (nor yet are they mere ideologies associated with groups or classes). Changes in the legal realities are what lead to philosophical ideas which, in turn, allow us to better reconstruct and understand those changes and influence them by means of new ideas. For this reason, before answering the questions of how the philosophy is applied to law or to what purpose , we must question why this application is needed: why the law needs to incorporate any philosophical reflection, whether it comes from jurists or philosophers.

17 To develop the thesis suggested in this question, we have to consider two issues. The first is what it means to say that law is a “category”. The second is to identify what kind of “critical totalisation” is relevant in this regard in order to yield a true philosophical reflection.

18 i) Considering whether law is a category is tantamount to inquiring into the conceptualisation (epistemology) and reality (ontology) of legal phenomena. It would be difficult to find a view of law that denied that this categorical nature is essentially practical, inasmuch as it is an institutionalised social technique. Its “positivity” is associated with this fact (and it is no coincidence that the practical category of law is the first place where this very idea of “positivity” emerged, before “positivism”). Even natural law, as a dualist theory of law, must include the “social thesis” that legal positivism rendered redundant: only what is produced by human practices is (or stops being) “law”, with no need for further qualification. The “technical” dimension of law is inseparable from its “artificial” nature as an activity or product of agents who are, not coincidentally, called legal “operators”. The categoricity of law is also associated with its normativity. Legal institutions (legislative, judicial, executive) consist of linked practices aimed at continuously producing and applying norms. They are also second-order practices in that legal institutional operations have a social anchor: they assume given practices and norms, and their purpose is to establish a certain order with regard to these practices and norms, interfering in their course by means of operations and decisions. The institutional structure of law is thus situated in a middle ground between moral institutions and political institutions. The legal norms that result from this practical institutional structure are viewed as the ultimate social norms —that is, final or definitive, not of course morally infallible norms.

19 ii) If we accept these extremely broad premises, they should yield the key to the notion of “totalisation” to which we have been referring. Atienza (1989: 371–2) boils this idea down to its essence:

The role of the philosophy of law in legal culture as a whole is similar to that performed by law in society overall. The law is said to be a system of social control because it oversees and somehow directs the way social institutions operate; the juridical is not an attribute exclusive to certain social sectors or institutions but rather —once again using C. Nino’s metaphor— it is something that is everywhere, just like air in the physical world. Nor does the philosophy of law have a bounded, exclusive terrain within all legal and social knowledge; its terrain is instead to be found in the relationships among these diverse sectors of culture.

20 If legal philosophy is a totalising reflection, it is because law per se is a totalising institution, a pars totalis of society as a whole which, precisely for this reason, demands recourse to philosophical ideas of a certain kind.

14 Kant (1797) 1968: 229-230 (“Einleitung in die Rechtslehre”, § B).

21 When asked about the concept of law ( quid ius ), Kant is famous for having said that jurists can only respond tautologically by referring to “what the law is” ( quid iuris ), that is, to “what the laws in a given place and given time say or have said”. This “purely empirical” reference to the categorical nature of law or legal positivity is, Kant alleged, insufficient: “a merely empirical theory that is void of rational principles is, like the wooden head in the fable of Phædrus, fine enough in appearance, but unfortunately has no brain”. By this he was pointing to the need to adopt a philosophical perspective: it is essential to seek a “rational” way that is grounded in the concept of law, “abandoning those empirical principles and searching for their sources in pure reason”. 14 But what I somehow want to explore is the path opposite to the one discussed by Kant. The ideas of legal philosophy should not be sought in any “pure” aprioristic reason but rather in categorical legal practices themselves. When they establish “what the law is” (i.e., what is legally regulated) they are already, by necessity, assuming some conception about what the law is ( quid ius ), and these conceptions are precisely those which involve the philosophical ideas that make up the sphere of reflection of legal philosophy. Thus, the goal is to show that the practicality of the legal category is actually not merely empirical and does not entail a mere denotative allusion to “legal practices” or to law as a “social practice” in the sense of a “matter of fact” (as the positivists also often view it), but that it also includes elements of universality that lead it to transcend its factual dimension (though without necessarily entering into metaphysics). Such universal elements — which, as we shall see, are simply values— are the necessary components of legal rationality, of the very discourse of law, and they make its concepts characteristically extend beyond the categorical framework from which they emerged.

5 Ubi ius, ibi philosophia

• 15 The formation of classical philosophy is closely linked to the discussion against sophists and ora (...)

22 What gives conceptualisations of the legal category a philosophical scope is not merely the fact that they contain “totalisations”. Totalisations are common to any category, just as any scientific or technical category entails exercising criticism at some level. As we have already said, the uniquely philosophical form of totalisation appears in a multi-categorical and therefore transcendental context. And this holds true of legal concepts inasmuch as their practical and normative nature implies connection and synthesis among different categories: moral, political, social, economic, etc. The kind of normative totalisation which is characteristic of the legal category brings it to the verge of philosophy. While this does not mean that the purpose of law is to “solve philosophical problems”, it should nevertheless imply that the practical problems of law cannot be solved without using philosophical ideas and conceptions. Additionally, we should not lose sight of the fact that the very origins of philosophy in Greece were closely tied to discussions of all sorts of problems —logical, moral, political, etc.— closely related to legal categories. 15

16 Cf. Viehweg 1991: 35, 44ff.

23 Yet in addition to this multi-categorical definition, there is a second feature of the legal category that forces its concepts to make “totalisations” without ceasing to be concepts. Because it is institutionalised, the law is a collective practice, an aggregate of extraordinarily complex and highly internal specialised sub-institutions —at least where legislative, executive and judicial functions can be minimally differentiated— which operate according to decisions of diverse subjects through extensive periods of time. This multiple diversity of functional parts means that unity and coherence of purposes within legal practice are only possible if it incorporates specific devices of reflective rationalisation to carry out its functions of producing and applying norms. The law is thus largely a corpus of “doctrine”, that is, normative practice plus theory, connected internally. Its facet as a technique for social control is inseparable from its dimension as reflective, “ideological”, doctrinal technique, which implies a high degree of abstraction in its approach to social agency. Legal practice depends on a complex conceptual and theoretical instrumentarium in which we can discern two different genres. 16 The first contains the formal doctrines or theories which outline the technical and methodological resources and procedures associated with legal practice as a “formalist” practice, that is, centred on legal norms in their role as “forms” or structures through which it intervenes in social action (primarily rules and principles). These doctrines substantially supply the legal norms with an identification, classification and rank (a theory of the legal “sources”), as well as the results and procedures used to implement them in practice (a theory of method or interpretation). The second genre contains the material theories which supply overarching conceptions of the substantive normative contents , the purposes and values which the legal system is geared towards achieving via the aforementioned techniques and methods (e.g., a theory of constitutional rights). Both kinds of theories or doctrines, which are eternally intertwined, comprise a legal ontology and epistemology, that is, a working “philosophy of law”. They form what has been called “legal paradigm”, “legal reason”, “legal ideology” or “shared legal consciousness”, which can also be seen as a true “worldly” or “professional” philosophy of law, or a “jurists’ spontaneous philosophy” which encompasses a self-conception of law ad intra and a “legal conception of the world”, that is, an ad extra interpretation of reality (social, political, economic, natural) stemming from legal rationality as a second-order rationality.

24 A third fundamental aspect of these totalisations of legal rationality which decisively brings their format closer to philosophical totalisations is related precisely to this dimension of second-order normativity. I am referring to the fact that it has a dialectical constituent nature; that is, it is structurally associated with conflict, deviation, incompatibility, contradiction, incommensurability and controversy. Therefore, its rationality essentially consists of deploying strategies aimed at using discourse and argumentation to manage and disentangle these conflicts and incommensurabilities. This is obviously related to the fact that the law as a social institution is primarily charged with being “the last resort” ( ultima ratio ) and has a coercive monopoly on conflict resolution and the enlisting of cooperation and coordination on a collective scale. However, precisely because of this, its norms and decisions are the outcome of a “syntax” or composition of essential plural or heterogeneous parts or elements which are in constant conflict and imbalance. There is no need to belabour the fact that this is also true of both producing laws (legislative, constitutional) and applying them (judicial, administrative). The logical construction of kinds or types of action and the individualisation and specification of the particular practical situations arising from them are a form of totalisation, and the same holds true of the finalistic reasoning (composition of interests and objectives) and balancing deliberation (composition of values) from which legal norms and decisions result. In both cases, the practical problems that are addressed by the law are therefore very similar to philosophical problems. They both entail conflicts whose very nature somehow compromises or puts in question the entire category and exceeds it “from the inside out”. The most common manifestation of this goes beyond the fact that each legislative or judicial decision entails a holistic regressus to the entire “legal system” as a whole (Dworkin’s “integrity” for instance). Furthermore, this systematisation cannot merely be logical or formal. The legal system is not a “logical system” but a “practical system”, one that is doctrinal, prudential or justificatory (although, of course, its justifications cannot avoid logic). And this means that rather than being a “closed” category by application of its very internal conceptual and theoretical methodology (as would be the case if it were a scientific category), it is a methodology that presupposes the essentially “open” nature of legal practice. In other words, its “closure” can only occur by incorporating elements from other categories. Given that the law is a second-order system, these elements cannot be anything other than the overarching purposes and values that the legal system strives to materialise in the first-order social practices, purposes and values that the law itself does not create but rather recreates and shapes in practical terms. Thus, we are dealing with the incorporated contents which we called “material theories” above, substantive conceptions that are necessarily political-moral (and therefore “philosophical” in the sense noted) and which legal practice necessarily merges with.

6 Legal philosophy as practical philosophy

25 If legal rationality is presented this way, as “philosophical” conceptions that are an internal, necessary part of law itself as a doctrinal system, then law should have its own “genitive” philosophy of law. Theoretical conceptions usually considered to belong to academic philosophy of law (legal positivism, formalism, natural law, constitutionalism, realism, etc.) also shape jurists’ own “professional philosophy” in itself; this is particularly visible in the more abstract doctrinal strata of legal practice, which are also the most far-reaching (such as constitutional courts). Therefore, the point of contact between legal philosophy as a discipline and law itself is to be found here: philosophical conceptions of law are an internal part of its practice, and the theories that shape legal practice partly overlap with the philosophy of law.

• 17 Thus Bobbio himself assumes this when he ends his paper by redirecting the opposition between phil (...)

26 Legal philosophy in the strict or academic sense could then be defined as any formally philosophical reflection aimed at systematising ideas which already have some level of reflective categorical development within law. Here is where, as mentioned above, we must considerably adjust Bobbio’s general assessment of the contrast between jurists’ and philosophers’ legal philosophy. This contrast distorts the fact that any philosophy of law, no matter whose it is, has always consisted in applying more or less systematic philosophical schemes to law (and it is impossible to see how it could be otherwise). On the one hand, Bobbio does not pay enough attention to the fact that law is a historical-cultural institution which poses general philosophical problems for any philosophy. As such, law has always been present in the ideas coined by the great general philosophers in the Western tradition, a part of which, since Aristotle, has been known as “practical philosophy” ( politiké ), which encompasses moral or ethical philosophy, political philosophy and social philosophy in general. Suffice it to mention the very idea of “law” ( lex ), the practical use of which is the outcome of the synthesis of different categorical conceptions: moral, scientific, legal. The “persistent questions” (Hart) raised by law are general philosophical problems, such as its origin and its relationship with the ideas of normativity, power, society, justice, morality or scientific truth. On the other hand, the general preference for jurists’ philosophy of law is unjustified. Because of their training, jurists are best poised to undertake a philosophical reflection based directly on legal categories (which is imposed on them by their own methodology), and this explains why academic legal philosophy has primarily been cultivated by “jurist-philosophers”. However, this in no way guarantees complete immunity from metaphysics or dogmatism. In any historical period, jurists have appropriated general philosophies when devising their doctrines (indeed, the very category of legal has always needed a covering of philosophy with which to build its internal meta-theory). It could be claimed that not a single philosophical doctrine has failed to receive an incorporation or adaptation from the field of law (Thomism, Kantism, Marxism, Hegelianism, pragmatism, phenomenology, neo-empiricism, analytical-linguistic philosophy, hermeneutics, discourse theory, post-modernism and any other philosophical “-ism”). The examples of “applied” philosophy that Bobbio censures are also the work of jurists, and not just of philosophers who “speculatively” descend to the field of law. This proves that the “application” of philosophical systems itself does not deserve the aprioristic label of metaphysical or dogmatic —but rather those specifically applied theses, concepts, and methods. 17

27 Instead, what the history of legal philosophy shows us is a continuum of ideas which all converge in law and are modulated differently (but not in a mutually exclusive way) by general historical philosophical systems and by the academic philosophy of the law as a discipline embedded in the law. Jurists’ philosophical conceptions, which are, as we have seen, internal totalisations of the very category of law required by the kinds of problems dealt with by the practice of law, are where the two intersect. These conceptions are unquestionably the best available philosophical entryway into the law, in that they supply the basic repertoire of legal-philosophical ideas and, in this sense, must be capable of being incorporated by any philosophy of law that does not seek to be metaphysical or disconnected from legal experience. Yet they must also be the target of criticism and reframing in general or transcendental philosophical terms, rather than being viewed as inherent to a purely endo-legal or intra-categorical discourse. And that criticism means that legal philosophy must necessarily interweave with moral philosophy and political philosophy; that is, it must be constructed within the framework of some practical general conception of philosophy viewed in a transcendental perspective. Below we shall very schematically examine some of the main arguments upholding this claim.

18 Pound 2002: 30ff., passim .

• 19 It is common knowledge that in relation to concepts, Kant’s ideas of practical reason have a const (...)

28 The core argument leads us to once again consider the kind of totalisations that characterise the legal category and are expressed in its internal conceptions. They are essentially justificative totalisations. Given that the law is a practical, normative category, legal concepts are doctrinal concepts. Their main purpose as practical concepts is not only to guide action (the “technical” aspect), but to do so in a justifiable fashion. Legal concepts are linked to the practice of arguing and providing reasons in regard to legal decisions, of justifying action ( ex post and ex ante ). This means that what we have called the ideas that shape legal practice until now, are actually “ideals” 18 or, in Kantian terms, “regulative ideas”. 19 That is, they are values .

20 Alexy 2005: 45ff.

21 Waldron 1994: 527ff.

22 Raz 1990: 187.

23 Dworkin 2006: 35.

29 Values are the true transcendental building blocks of legal practice. This could be asserted after examining any inventory of the fundamental legal concepts, such as “person”, “action”, “rule”, “illicit”, “sanction”, “responsibility”, “right”, “duty”, etc., which represent a categorisation of the basic notions of practical philosophy (the traditional philosophia practica universalis ). Dealing with these essentially justificatory concepts in legal practice is what makes it necessary to draw from conceptions (which we called “materials” above) that are capable of supplying versions or interpretations of them in terms of conglomerates of foundational value judgements. These evaluations are at the very core of the legal method, which actually starts with the assumption of the “openness” or “indeterminacy” of the legal system and the need to “close” it or determine its content by referring to practical justifications of this kind. 20 Legal concepts are always elisions of value judgements. 21 The entire technical-practical complex of the law —primarily made up of rules as elemental instrumental units of the jurist’s work— is the outcome of deliberations and balances between values, and thus the practical application of the concepts captured in them is inseparably linked to the underlying value judgements and the need to rationally ground them in objective validity. The disagreements which lie at the origin of rules —as “expressions of compromises, of judgements about the outcome of conflicts” 22 — are constantly reproduced in their process of application, so that determining the “grounds of law” in each new case requires making explicit the values at stake, and ultimately their ethical-political foundations. Hence, it is essential to gain some conception of the principles (which are the normative expression of values) and to wholesale reconstruct the law involved in the resolution of each case in legal practice, even if this may only seem particularly visible in difficult cases or in legal issues that typically spark moral disagreements (abortion, euthanasia, gay marriage, surrogate motherhood, etc.). All legal issues, including easy cases, are questions of principle in this sense, that is, questions of value. 23

24 Atienza 2013: 284.

25 Aristotle, Nicomachean Ethics : V.

30 It is therefore necessary, in Atienza’s words, “to resort to a moral and political philosophy that allows some order to be articulated or established among the different kinds of justifying reasons that converge in law”. 24 This philosophy encompasses combinations of ideas on the common good, the general interest, human rights, collective goals or purposes, etc. and is ultimately resolved in some kind of foundation of the basic ethical and moral values (freedom, equality, dignity) and the political values which justify power and authority (a conception of democracy, of the rule of law, etc.). That is, it is resolved in what, we have called since Aristotle, 25 justice as a basic schema to articulate ideas around what is good and right in distribution and reparation in both the public and private matters that make up the territorium of human praxis. In this way, the justificative dimension of law connects it internally , from its own practice, to philosophical-moral and philosophical-political conceptions. It leads to general or omni-comprehensive systems of practical philosophy (with an orientation that can be liberal, utilitarian, communitarian, deontological, social, etc.) from which, in turn, the orientation and normative critique of those legal conceptions take place. These normative functions essentially correspond to the academic philosophy of law, the natural middle ground between law and practical philosophy, which is then shown to be a practical undertaking. The philosophy of law is a practical philosophy that follows the law, like its shadow. The values it encompasses, as both transcendental underpinnings and ideas from practical philosophy simultaneously, serve as a bridge, allowing a back and forth movement between the two.

26 Rawls 1993: 212ff.

31 We could even claim that legal philosophy is that region (or “part”) of practical philosophy that enjoys a certain “primacy” over the others. After all, law is not only a place where political-moral values are realised and embodied (a decisively effective embodiment due to the fact that legal institutionalisation manages public coercion) and where these values thus gain a definitive justification, but also the place where moral philosophy and political philosophy converge on equal terms from their own transcendental perspectives. Indeed, legal-practical institutions appear to be their necessary landing place. They can play the role of a historical-cultural mesh necessary to make morality and political society possible, without which their values would simply disintegrate. Law represents not only a society’s ideological self-description but also its own political and moral self-justification, where all practical values are ultimately “personified”, that is, attributed to the community as a whole (a clear form of “totalisation”). Law is thus associated with the very idea of “public reason”. 26 This is a thread running throughout the history of practical philosophy from Aristotle to Kant, just to cite its two touchstones.

27 Dworkin 1986: 404ff.

32 We can thus understand the profound sense in which the genuinely philosophical perspective on law can be viewed as teamed with the notion of “critical totalisation”. It essentially has to do with the justificative purpose of law, which operates on the basis of practical values. The point is not only the prevalence of this justificative dimension of law over its technical or directive dimension, since the problems it deals with encompass conflicts and disagreements that are ultimately axiological and need to be resolved on equal terms. Nor should the practice of law be governed by a method that seeks to constantly construct and reconstruct the coherence or “integrity” of legal matters. Justifying (the legal method) would then appear as a complex interpretative action that effectively entails “totalising” every case by virtue of multiple criteria (relevance, description, applicability, truth, appropriateness, weighing, etc.) in order to integrate it into the legal system “as a whole” (Dworkin 1986: 400-1, 411), somehow recapitulating the entire set of technical instruments of positive law in each decision. The point is also, and above all, that this requires going beyond the legal category to reveal law as a precisely political-moral technique . Legal technique as a whole and each of the decisions made within it throughout its constant development (in this second reflective level on social practices) must appear as a justified practice that serves the values of justice and morality. “Inclusive” integrity, in turn, refers back to a “pure”, 27 aspirational integrity on whose terms law as an institution that realises values is justified; yet also, and more importantly, it is criticised if it does not.

28 Sen 2009.

33 And this is the reason why the problem of unjust law, of the validity of legal norms and decisions, is a transcendental problem that calls the whole legal category into question and labels some particular decisions as “flawed” or burdened by shortcomings (axiological and therefore legal) when they are inevitably shown to be unjust after all. This aspect is recognised in topoi like Antigone, Augustine’s magna latrocinia and “Radbruch’s formula”, which manifest the pretension for law to be correct (Alexy) or claim that it is a practical system that seeks moral authority (Raz). The essentially totalising and conflicting nature of the practical values involved in the legal institution —the values of justice or, more accurately, the demands of injustice 28 — are what make the concept of law draw from philosophy, and what makes legal philosophy a practical philosophy.

29 Nino 1994.

30 On the “logical primacy of the internal point of view of human practice”, see Nino 1994: 37, 47.

34 Justificative legal rationality thus rests upon a constant practical effort to connect or combine partes extra partes with respect to law. This practical process, far from reflecting a “pre-established harmony”, is essentially “open”, asymmetrical and controversial, which results both from the fact that legal practices must constantly adjust to the flow of first-degree social practices and from its own independent institutional logic as “technical” device. Parts of law interfere with parts of morality and with parts of politics in different ways, at different levels, and not always (if ever) harmoniously. 29 But the tensions among them must nonetheless be recomposed in a unifying justification in the guise of ultimate totalisations of the values involved. This includes the tensions that exist between the efficacy of power or authority and substantive validity; between justice and legal security; between dura lex, sed lex and summum ius, summa iniuria ; between the political limits of law and the aspirations of universal rights; between the sociocultural, idiosyncratic uniqueness of each legal community and the demands of universal critical morality; between the institutional values of legal technique (associated with the continuity of past operations, formal equality, specific interpretative patterns, etc.) and the substantive values of justice; between the very principles of justice that law encompasses and their necessary stabilisation through rules; between the rationality that governs the legal system and the inevitable presence of irrational decisions in its implementation. Only through different conceptions of the internal values of legal practice (as part of the different conceptions of law) can we reach any kind of single articulation of this essentially conflictive terrain which is capable of forging “overlapping consensus”, “reflective balances”, criteria of “reasonability”, “balancing” or “proportionality”, “incompletely theorised agreements”, etc. This is the result of interpretations that entail questioning the legal category as a whole in light of values, while it also leads to the restoration of the unity of practical reason around these values. This need to evaluatively interpret the legal category in terms of totality based on the entire practical realm explains that the doctrinal concept of law has epistemological priority over all other concepts (sociological, economic, logical, etc.). 30 It also determines that the concept of law is an “essentially contested concept” or an “interpretative concept”, that is, a philosophical concept, an idea . And ultimately, this is also the reason there must be an uninterrupted, substantial continuity between the two.

31 Kelsen 1962: 131.

32 Hart 1987: 37ff.

• 33 See a clear and early formulation of both theses in Bobbio 1990b. The general theory of law is fac (...)

35 Now the sense of the thesis that legal philosophy cannot be understood as an adjectival or genitive philosophy may finally be clearer, too. This would precisely be a philosophy in which the values that concern law are not considered as transcendental. That is, they are viewed either as values purely external to legal rationality (belonging to moral or political philosophy but not to legal philosophy) or as values that are purely internal to the legal institution (not connected to morality and politics, that is, not transcendental). A clear formulation of both ideas can be found in Kelsen, when he states that “given that justice is a postulate of the moral, the philosophy of law is a branch of moral or ethical philosophy”. In other words, as long as it is concerned with values, philosophy of law would no longer refer to law. Thus, the key discipline regarding law is not a “legal philosophy” but a scientific “general theory of law” the purpose of which is descriptive, not normative. According to Kelsen, “the subject matter of this theory is the law as it actually is , that is, positive law, both national and international”, and its purpose, in turn, “consists of analysing the structure of positive law and setting the fundamental notions in the knowledge of this law”. 31 This idea is what has prevailed in the core currents of contemporary legal positivism, in its zealous attempt to separate what law is from what it should be, of isolating “conceptual issues” from “normative issues”. Hart even considers this the nuclear positivist thesis. 32 Indeed, legal positivism is the most emblematic (though not the only) embodiment of the viewpoint that assumes that the substantive values of law are segregate from the field of legal philosophy or that reduces them to strictly internal values (technical or categorical: primarily the formal or institutional values of law). Both assumptions entail the liquidation of the philosophy of law, the former because it would not be properly a legal philosophy but a moral or political philosophy, and the latter because its study would no longer be philosophical but rather scientific (or technical), as legal concepts could be reconstructed, it is said, away from any justificative value judgement. 33

34 Ferrajoli 2008: 28ff., 45, 49ff.

36 Thus, Ferrajoli, for example, tells us that referring to the values of justice would mean adopting an external point of view in relation to law: “the point of view of the political, which views positive law and the legal institutions of the diverse legal orders as a historical, political or social product which must be constructed (or demolished), defended (or criticised) and conserved (or transformed)”. This external standpoint, according to Ferrajoli, “assumes the values that design and project the external, ethical-political ought of law and that allow formulate judgments on the greater or lesser degree of justice (or injustice) of the law”. Now, “legal theory is situated on a completely different level, as a formal theory limited to analysing technical-legal concepts and their syntactic relationships”. This theory is “formal” or structural, essentially logical or scientific in nature, a “meta-theory” of legal concepts that takes them as “ideologically neutral, that is, independent of any value system internal or external to the legal systems studied”. 34 Therefore, the theory of law seeks to be the true discipline that replaces legal philosophy scientifically —categorically.

35 Guastini 2011: 7ff., 9.

36 Raz 1995: 235ff.

37 Marmor 2011: 129ff.

37 Expressed in other words but with the same outcome, legal philosophy is, according to Guastini, just a “philosophy of jurisprudence”, a “merely conceptual” analysis of jurists’ discourse, the purpose of which is “to model the concepts which can describe the law”, but not to model the law itself, “in no way influencing the identification of the content of law itself, which, by hypothesis, is not in dispute when debating in philosophy of law”. 35 In sum, the values of law are only identified as attributed social facts, not as values whose recognition entails a practical compromise which turns any discourse on them into a normative discourse and, in particular, the discourse of legal philosophy. 36 This compromise would involve no more than epistemic values, excluding substantive ones; the goal would simply be to describe evaluations, those which are present in the justification of law, without this then requiring a justificatory or normative theory. The values that make law a normative and justificative institution are only transferred theoretical or epistemological values, but not necessarily practical values (either shared or rejected). 37 Legal philosophy is not normative or practical in a strong justificatory sense, but a theoretical (“conceptual” or exempt from normativity) undertaking.

38 This is a philosophically recognised idea from Aristotle’s epieikeia to Hart’s open texture .

38 It seems obvious, however, that philosophical criticism on this standpoint can only be made in epistemological and ontological terms, as mentioned above. On the one hand, this criticism must show that the philosophical attempt of conceptually reconstructing legal validity as stripped of value is based on an erroneous understanding of the epistemology of the legal-normative discourse and its conditions of scientific validity. The legal category is not scientific precisely because legal concepts —the concepts of legal dogmatics, of the “general theory of law” and its successor, legal theory viewed as “science”— are structurally evaluative and grounded upon stances that are irremediably moral and political. Therefore, there is no legal science capable of epistemically (“theoretically”) distancing or freeing itself from the practical compromise with the substantive values of law. Any metalinguistic or metatheoretical discourse that deals with the legal concepts in which these values are captured performs functions internally to the object language of legal practice as it belongs to the grammar of this praxis. These are functions of legitimation or criticism that make it more a meta-language of law (i.e, internally generated from the internal or participant point of view in order to conceptually “close” the legal category) than about law. But neither the technical nor the scientific (doctrinal) legal concepts manage to render the legal category “closed” or self-referential; on the contrary, their practical dimension determines that legal normativity has a permanently open structure 38 and necessarily refers to other moral and political categories or notions. The fact that the legal category is not strictly scientific or technical but rather a doctrinal practice in no way diminishes its rationality; it only means that it is a practical, political-moral kind of rationality whose concepts can only be articulated and “closed” in a unitary way by making use of philosophical ideas dealing with political-moral values. Is such an evaluatively committed character of legal rationality what determines then that, despite its categoricity, it is neither scientific nor can it be qua tale scientifically reconstructed.

39 Ferrajoli 2008: 57ff.

40 Postema 1998.

• 41 On the priority of the material (that is, practical) conception of legal argumentation over the fo (...)

39 Thus, the “pragmatics” of legal theory, Ferrajoli tells us, is about the very principles of law (that is, its values) viewed as the “logic” guiding it, but as iuris tantum and not iuris et de iure principles, given that the nomodynamic structure of law, subjected to divergences and historical contingencies, will not always make it possible for them to be satisfied. 39 This is simply another way of saying that law is a practical undertaking whose purpose is to totalise these values, which remain in conflict inside and outside the legal category and should therefore not solely be viewed as epistemic (logical), purely descriptive and analytical, that is, theoretical values. They involve practical engagement in substantive conceptions of justice articulated through different combinations and specifications of those principles. Only in this way do they allow for the ethical-political criticism of established law, a kind of criticism that is then both internal and external, that is, transcendental or philosophical. The pragmatics of legal theory is yet another dimension of legal practice: legal theory is not a theoretical discipline according to any minimally rigorous definition of the term, 40 and this is the fundamental meaning behind the statement that legal philosophy is a practical philosophy. The set of epistemological ideas upon which legal philosophy critically examines legal rationality in argumentative terms —ideas such as “interpretation”, “correction”, “logic”, “argument”, “truth”, “objectivity”— reveals the primacy of the justificatory dimension of legal praxis and its internal connection to moral and political value judgments. 41

42 Waldron 2001.

40 On the other hand, the ontological consequences of what has been said so far can only point to the fact that the “reality” of the law is a practical undertaking anchored in a political or institutional system of authority, which simultaneously tries to seek moral validity or justification. This means that it supplies reasons whose scope necessarily goes beyond the contingency of any social “fact” or source, any convention or ideology, and links up with values that should be viewed as objective, historical-culturally developed ideas , which any kind of legal discourse has to engage in by incorporating a claim to practical correctness. These ideas (which are primarily the ideals of justice and rationality that constitute legal argumentative practice, themselves at the root of the philosophical dialectic of classical Greece) show that what law “should be” can thus not be uprooted from its reality or being, but is rather internal to it, as are the conceptions about it operating within legal rationality. This not only renders philosophically inconsistent any axiological scepticism or radical criticism which strives to deny the objectivity or validity of the evaluative reasons of law by reducing values to facts (e.g. to ideologies, social conventions or mere disguises of the strategic mechanisms of power); it also makes legal positivism itself particularly self-destructive and blind to the true practical nature of law, in that it strives to be compatible (like “ethical positivism”) with any kind of moral objectivism. 42 After all, the thesis of the separation or segregation of law from moral values would itself be a normative or moral thesis that rests upon what it is trying to deny: the fact that moral values are not only present but constitutive of the concept of law. They could no longer be seen as merely “conceptual”, in the sense of “epistemic” or “attributed” values, but instead as substantive practical values. This entails a normative conception of legal theory and therefore an understanding of this as practical philosophy.

• 43 Dworkin is far and away the legal philosopher who has best captured this point, when he claims tha (...)

41 Hence, finally, the discourse of legal values —legal axiology— cannot be viewed as a third discourse or a part of the philosophy of law independent from the discourse on the concept of law (legal ontology) or its forms of knowledge (legal epistemology), as it is commonly viewed. This would be nothing other than an inherited prejudice from the positivistic view of law, and not only a prejudice but also a hindrance. The conception that is most coherent with the true position that law occupies within the political-moral space —precisely because values are so central to it—, that is, the post-positivistic conception which we call constitutionalism or the argumentative view of law, means transcending this methodical view of free-value positivism and instead envisioning the philosophy of law as a practical philosophy integrated in moral and political philosophy. The universality of the concept or knowledge of law (and therefore, the universality of legal philosophy) cannot be encapsulated within a single categorical enclosure, as if it were a “natural”, “criterial” or “semantic” (that is, scientific) concept. The idea of constructing a universal concept of law has been present in the history of legal philosophy since ancient times (from the Greek koinos nomos and the Roman ius gentium to mediaeval natural law and modern rational law or the positivistic “general theory of law”), but it has always been a truly philosophical project. The concept of law is an “interpretative concept” constructed upon ideas and conceptions of a philosophical nature which are present in legal practice and in the doctrinal concepts of law methodologically linked to its internal justificative point of view —to jurist’s prudentia iuris . 43 What is truly universal in law should thus be values themselves understood as ideas that seek to be transcendental and from which it is possible to overtake (critically totalise) the contingent or particularist historical anchor of such justificative practice. The categoricity of legal institutions and norms is contextual, always fragmented into idiographic and idiorhythmic regional circles (national states, legal families, cultural traditions, etc.), because norms can be abstract objects but also individuals in the logical sense. Only values would be susceptible to true universalisation, as they play their justificatory role in objective terms and so become the genuine ideas that make legal practice a rational, universalisable practice. Law will lose what actually makes it rational if these ideas cease to be present. And inasmuch as legal philosophy strives to do without them, to present itself as more “technical” or more “scientific”, it will put at risk its own claim to universality, which belongs not to a theoretical but a practical philosophy.

— Acknowledgments. — This paper is part of the Research Project “Development of an Argumentative Conception of Law” (“Desarrollo de una concepción argumentativa del Derecho”, DER2013-42472-P) supported by the Spanish Ministry of Economy and Competitivity.

Bibliography

Robert ALEXY, 2005: La institucionalización de la justicia . Transl. J.A. Seoane et al. Granada: Comares.

ARISTOTLE, The Complete Works of Aristotle: The Revised Oxford Edition . Ed. J. Barnes. Princeton : Princeton University Press 1995.

Manuel ATIENZA, 1989: Introducción al Derecho . Barcelona: Barcanova.

Manuel ATIENZA, 2013: Curso de argumentación jurídica . Madrid: Trotta.

Manuel ATIENZA, 2015: La filosofía del Derecho como filosofía ‘regional’. URL: http://lamiradadepeitho.blogspot.com.es and http://iusfilosofiamundolatino.ua.es (May, 6 th 2017).

Claudia BARACCHI, 2008: Aristotle’s Ethics as First Philosophy . New York: Cambridge University Press.

Norberto BOBBIO, 1950: Interpretazioni anglosassoni della filosofia del diritto. Rivista internazionale di filosofia del diritto . 35 (1950) 1. 90-101.

Norberto BOBBIO, 1990a: Naturaleza y función de la Filosofía del Derecho [1962]. Contribución a la Teoría del Derecho . Ed. Alfonso Ruiz Miguel. Madrid: Debate. 91-101.

Norberto BOBBIO, 1990b: Filosofía del Derecho y Teoría General del Derecho [1950]. Contribución a la Teoría del Derecho . Ed. Alfonso Ruiz Miguel. Madrid: Debate. 73-90.

Gustavo BUENO , 1970: El papel de la filosofía en el conjunto del saber . Madrid: Ciencia Nueva.

Gustavo BUENO, 1999: ¿Qué es la filosofía? Oviedo: Pentalfa.

Roger COTTERRELL, 2014: Why Jurisprudence is not Legal Philosophy. Jurisprudence: An International Journal of Legal and Political Thought 5 (2014) 1. 41-55.

Elías DÍAZ, 1992: Sociología y Filosofía del Derecho [1971]. Madrid: Taurus.

Ronald DWORKIN, 1986: Law’s Empire . Cambridge, Mass.: Harvard University Press.

Ronald DWORKIN, 2006: Justice in Robes , Cambridge, Mass.: Harvard University Press.

Ronald DWORKIN, 2010: ¿Deben nuestros jueces ser filósofos? ¿Pueden ser filósofos? Isonomía 32 (2010). 7-29 (transl. L. García Jaramillo).

Luigi FERRAJOLI, 2008: La Teoría del Derecho en el sistema de los saberes jurídicos. La Teoría del Derecho en el paradigma constitucional . Eds. Luigi Ferrajoli, José Juan Moreso and Manuel Atienza. Madrid: Fundación Coloquio Jurídico Europeo. 25-69.

Riccardo GUASTINI, 2011: La sintassi del diritto . Torino: Giappichelli.

Herbert L. A. HART, 1987: Comment. Issues in Contemporary Legal Philosophy . Ed. R. Gavison . Oxford: Clarendon Press. 35-42.

Werner JAEGER, 1946: Paideia. The Ideals of Greek Culture [1933]. Vol. I: Archaic Greece. The Mind of Athens . Transl. G. Highet. Oxford: Basil Blackwell.

Werner JAEGER, 1982: Alabanza de la ley. Los orígenes de la filosofía del Derecho y los griegos [1947]. Trans. A. Truyol. Madrid: Centro de Estudios Constitucionales.

Immanuel KANT, 1968a: Die Metaphysik der Sitten [1797]. Kants Werke Akademie-Textausgabe . Berlin: Walter de Gruyter & Co. 1968. Vol. VI. 203-494.

Immanuel KANT, 1968b: Der Streit der Facultäten [1798]. Kants Werke Akademie-Textausgabe . Berlin: Walter de Gruyter & Co. 1968 . Vol. VII. 1-113.

Hans KELSEN, 1962: Qu’est-ce que la Philosophie du Droit?. Archives de Philosophie du Droit 7 (1962). 131.

Andrei MARMOR, 2011: Philosophy of Law . Princeton: Princeton University Press.

Thomas NAGEL, 1997: The Last Word . New York: Oxford University Press.

Carlos Santiago nino, 1994: D erecho, moral y política . Barcelona: Ariel.

Michael OAKESHOTT, 2007: The Concept of a Philosophical Jurisprudence [1938]. The Concept of a Philosophical Jurisprudence: Essays and Reviews 1926-51. [Selected Writings. Vol. III]. Ed. L. O´Sullivan, Exeter: Imprint Academic. 154-183.

Gerald POSTEMA, 1998: Jurisprudence as Practical Philosophy. Legal Theory 4 (1998). 329-357.

Gerald POSTEMA, 2015: Jurisprudence, the Sociable Science. Virginia Law Review 101 (2015) 4. 869-901.

Roscoe POUND, 2002: The Ideal Element in Law [1958]. Indianapolis: Liberty Fund, Inc .

John RAWLS, 1993: Political Liberalism . New York: Columbia University Press.

John RAWLS, 1994: La idea de una razón pública. Isegoría 9 (1994). 5-40 (transl . A. Domenech).

Josep RAZ, 1990: Practical Reason and Norms . New York: Oxford University Press.

Josep RAZ, 1995: Ethics in the Public Domain. Essays in the Morality of Law and Politics . Oxford: Clarendon Press.

Josep RAZ, 2009: Between Authority and Interpretation. On the Theory of Law and Practical Reason . New York: Oxford University Press .

Alf ROSS, 1959: On Law and Justice . Berkeley: University of California Press.

Manuel SACRISTÁN, 1968: Sobre el lugar de la Filosofía en los estudios superiores . Barcelona: Nova Terra.

Amartya SEN, 2009: T he Idea of Justice . Cambridge, Mass.: Harvard University Press .

Jean-Paul VERNANT, 1985: Mito y pensamiento en la Grecia antigua [1965]. Transl. J. López. Barcelona: Ariel.

Theodor VIEHWEG, 1991: La Filosofía del Derecho como investigación básica [1961]. Tópica y Filosofía del Derecho . Transl. J. M. Seña. Barcelona: Gedisa. 29-51.

Jeremy WALDRON, 1994: Vagueness in Law and Language: Some Philosophical Issues. California Law Review 82 (1994) 3. 509-540.

Jeremy WALDRON, 2010: Normative (or Ethical) Positivism. Hart’s Postscript. Essays on the Postscript to The Concept of Law. Ed. Jules Coleman. Oxford: Oxford University Press . 410-433.

3 However, “transcendentality” would then have not an aprioristic or metaphysical meaning (as it does in Kant) but a meaning relative to a posteriori recurrence of practical human rationality (Bueno 1970; 1999). A similar perspective can be found in Nagel 2000.

4 “What is there to be said about the ‘nature’ of legal phenomena beyond that which emerges from the doctrinal study of law, which has these very phenomena as its subject?” (Ross 1959: 6).

5 “It is understood that the preference for the works of jurists who raise themselves to philosophy more than for those of them who lower themselves to the world of law reveals the preference for one method or, more accurately, for a certain working style which is easier to find in the work of the former than the latter: What characterises this working style is the primacy attached to analysis over synthesis, a primacy grounded upon the conviction that even though analysis and synthesis are necessary steps in all inquiry, analysis without synthesis (which is what philosopher-jurists are often blamed for) is preferable to synthesis without analysis (which is a common vice among jurist-philosophers), because the former at least seeks good materials to construct, and because the latter only builds houses of sand where no one wants to live. ” (Bobbio 1990a: 96).

6 Bobbio’s core argument is that even though it may be more analytical than synthetic and have philosophical aspirations that are not rigorously systematic, jurists’ philosophy of law is a reflection developed from empirical, positivistic materials precisely because it comes from jurists who are working “grounded” in law, whereas philosophers’ philosophy of law is an eminently dogmatic, aprioristic philosophy ( ancilla philosophiae ), an “applied philosophy” of systems and doctrines extrinsic to the field of law in which the general problems of law are studied not by dealing with legal experience but from those prior systems, thus giving rise to speculative and rcductionist constructs, which fully justifies jurists’ traditional mistrust of philosophy.

8 Judging from the names he mentions (Hobbes, Ihering, Gény, Ehrlich, Kelsen, Kantorowicz, Ross, Hart), we can glean that Bobbio’s jurists’ philosophy is primarily affiliated with legal positivism, while as prototypes of the philosophers’ philosophy he cites Thomism or Hegelianism. As is well known, Bobbio was also very influenced by logical positivism in his understanding of the relations between science and philosophy. Otherwise, his direct adversary in this 1962 paper —and this explains its polemical, antimetaphysical purposes— is the Italian idealist-Hegelian legal philosopher Giovanni Gentile, “an extreme example of philosophical radicalization and hipostatization” (Bobbio 1990a: 96).

9 A similar three-way division can be found in Oakeshott 2007 when he talks about legal philosophy as an “applied philosophy”, as an “ a priori natural law” and as a “philosophy of jurisprudence”. They stand in opposition to genuine “philosophical jurisprudence”.

10 Some people have even dismissed positivistic legal philosophy with an analytical orientation as “scholastic” (Dworkin 2006: 213) or have condemned its distance from the practical interests of jurisprudence (Cotterrell 2014; Postema 2015). These are the same disparaging attributes of which Bobbio accuses “philosophers’” philosophy of law.

12 By “dogmatic philosophy” I mean any kind that envisions itself not as a reflective, secondary knowledge but as an original, radical or first-order one, a kind of substantive, previous knowledge that does not draw from sources outside itself but instead is “applied” top-down, as a system of “truths”, on contents or matters that in themselves are merely subsequent and secondary (a “general function” that is realised or verified ex post in “monotonous” variables). Dogmatic philosophy is any purely academicist or professorial philosophy that presents itself as a closed, finished doctrine and claims to be founded upon timeless or ahistorical principles; it is not embedded within the historical, practical and scientific present but instead consists of fundamental truths which are exempt from categorical realities, situated above or apart from them like a philosophia perennis .

13 This can be seen, for example, in Raz’s distinction between the “concept” and the “nature” of law (Raz 1995: 195ff.; 2009: 17ff., 91ff.).

15 The formation of classical philosophy is closely linked to the discussion against sophists and orators around the concept of law ( nomos ) and the ideals of justice ( dike , dikaiosyne , to dikaion ). From here not only arises the logic, the dialectic and the rhetoric, within the context of the polis democracy based on the discursive technique of logos as public reason ( isegoria , isonomia ), but the entire political and ethical philosophy of Plato and Aristotle. See e.g. Jaeger 1946: 99ff.; 1982. This makes practical philosophy the true “first philosophy” (Baracchi 2008). But it is also deeply connected to the second main source of philosophy —the emergence of scientific, universal knowledge with mathematics—, since the geometrical conception of cosmos pursues, in Vernant’s words, a “rationalization of political relations” that seeks “less to put the city in harmony with the sacred order of the universe than to achieve precise political purposes” (Vernant 1985: 193ss., 356). A similar combination of practical philosophy and scientific rationalism will repeat itself again in Modern Age and Enlightenment philosophy within the context of the modern state.

17 Thus Bobbio himself assumes this when he ends his paper by redirecting the opposition between philosophers’ and jurists’ legal philosophy to a last philosophical choice (“a difference between two modes of philosophizing”) between monism vs . pluralism and rationalism vs . empiricism (Bobbio 1990a: 98), being the jurists more inclined towards the second option within these dichotomies —that is, as said, giving priority to analysis over synthesis. It should be noted, however, that for Bobbio this does not necessarily imply a sharp analytical fragmentation of legal philosophy in the specialized subdisciplines he distinguishes (legal theory, theory of legal science and theory of justice). For in the last paragraph of his paper he states that a “unitary discipline” would be the best way for legal philosophy to play its practical, critical role (a role pretty close, indeed, to a “critical totalisation”): “The task of the philosophy of law, from the didactic point of view, is to break the dikes that keep the traditional legal disciplines in the artificial reservoir of a positive system. This objective can be better fulfilled by mining the dam on several sides at a time” (Bobbio 1990a: 99).

19 It is common knowledge that in relation to concepts, Kant’s ideas of practical reason have a constitutive or “categorical” use, not a regulative use with the purpose of providing them with unity or totality.

33 See a clear and early formulation of both theses in Bobbio 1990b. The general theory of law is factual, formal, scientific, non-philosophical and deals exclusively with the concept of law, whereas the philosophy of law is evaluative, material and confined to the idea of justice as a matter of value and ideological stance. “Filosofia del diritto nel senso proprio è solo la teoria della giustizia” (Bobbio 1950: 96).

41 On the priority of the material (that is, practical) conception of legal argumentation over the formal (logic) and pragmatic (dialectical and rhetorical), see Atienza 2013.

43 Dworkin is far and away the legal philosopher who has best captured this point, when he claims that constitutional judges make philosophical decisions, not only occasionally before a particular hard case (i.e., a case that questions the foundations), but as a matter of routine, given that the concepts they use in their decisions (“responsibility, meaning, intention, equality, freedom and democracy, for instance”) are “hard concepts” (i.e. ideas) that require deploying an argumentative or reflective practice on some of the deeper issues of political morality (Dworkin 2010: 22, 29, 33).

Electronic reference

Jesús Vega , “ Legal philosophy as practical philosophy ” ,  Revus [Online], 34 | 2018, Online since 25 September 2017 , connection on 02 August 2024 . URL : http://journals.openedition.org/revus/3859; DOI : https://doi.org/10.4000/revus.3859

About the author

Universidad de Alicante (Spain)

E-mail : [email protected]

The text only may be used under licence CC BY-SA 4.0 . All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

Open issues

• 52 | 2024

Full text issues

• 51 | 2023
• 50 | 2023
• 49 | 2023
• 48 | 2022
• 47 | 2022
• 46 | 2022
• 45 | 2021
• 44 | 2021
• 43 | 2021
• 42 | 2020 Internal legal positivism
• 41 | 2020 Constituent power
• 40 | 2020
• 39 | 2019
• 38 | 2019
• 37 | 2019
• 36 | 2018
• 35 | 2018
• 34 | 2018 Norms and Legal Normativity
• 33 | 2017 Pre-Conventions or Normative Facts (2/2)
• 32 | 2017 The Province of Jurisprudence Naturalised
• 31 | 2017 Dogmatics and Constitutional Interpretation
• 30 | 2016 Pre-Conventions or Normative Facts (1/2)
• 29 | 2016 Models of Legislative Authority, Interpretation, Realism, and Defeasibility
• 28 | 2016 Issues in Contemporary Jurisprudence
• 27 | 2015 Emergence, Coherence, and Interpretation of Law
• 26 | 2015 Positivism, Conceptual Jurisprudence, and Attribution of Responsibility
• 25 | 2015 Norms, Analogy, and Neoconstitutionalism
• 23 | 2014 Law, Logic and Morality
• 24 | 2014 Scandinavian Realism in All of Its Forms
• 22 | 2014 Constitutional Rights and Proportionality
• 21 | 2013 Lawyers and the Hierarchy of Norms
• 20 | 2013 Elections and Democracy
• 19 | 2013 Methodology and Legal Science
• 18 | 2012 Constitutional Democracy
• 17 | 2012 Law, Football, and Theories of Interpretation
• 16 | 2011 Law, Morals, and Rule of Law
• 15 | 2011 Legisprudence
• 14 | 2010 Interpretation and Defeasibility of Legal Rules
• 13 | 2010 Ethics and the Quality of Life. Selected Issues in Medicine, Sports, and Law
• 12 | 2010 Judicial Law-Making
• 11 | 2009 Constitutional Law in the Western Balkans
• 10 | 2009 Human Dignity and Mental Health
• 9 | 2009 Argumentation in the Constitutional State
• 8 | 2008 Judges and Legal Culture
• 7 | 2008 The Legitimacy of Judicial Law-Making
• 6 | 2006 Models of Judicial Legitimacy
• 5 | 2005 Procedural Guarantees
• 4 | 2005 Freedom of Expression
• 3 | 2004 Constitutional Justice in the European Union
• 2 | 2004 Protection of Social Minorities
• 1 | 2003 Experience of the (Slovenian) Past and Visions of the (European) Future

Presentation

• Editorial Board
• About the Journal
• Selection Criteria
• Instructions for Authors
• Publication Ethics & Malpractice Statement

Informations

• Subscriptions
• Our Book Series
• Publishing policies

Newsletters

• OpenEdition Newsletter

In collaboration with

Electronic ISSN 1855-7112

Read detailed presentation  

Site map  – Subscriptions  – Publisher  – Syndication

Privacy Policy  – About Cookies  – Report a problem

OpenEdition member  – Published with Lodel  – Administration only

You will be redirected to OpenEdition Search

• Slovenščina

What is the Philosophy of Law?

Rivista di Filosofia del Diritto 1 (2012) 67-78

Notre Dame Legal Studies Paper No. 12-67

Oxford Legal Studies Research Paper No. 45/2012

12 Pages Posted: 18 Jul 2012 Last revised: 9 Aug 2012

John Finnis

University of Oxford

Date Written: July 16, 2012

The philosophy of law is not separate from but dependent upon ethics and political philosophy, which it extends by that attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which is characteristic of juridical thought for reasons articulated by the philosophy of law. Positivism is legitimate only as a thesis of, or topic within, natural law theory, which adequately incorporates it but remains transparently engaged with the ethical and political issues and challenges both perennial and peculiar to this age. The paper concludes by proposing a task for legal philosophy, in light of the fact that legal systems are not simply sets of norms.

Keywords: philosophy of law, jurisprudence, general principles of law, positivism, natural law theory

JEL Classification: K00, K1, K3, K4, K10, K30, K40

Suggested Citation: Suggested Citation

John M. Finnis (Contact Author)

University of oxford ( email ).

University College Oxford, OX1 4BH United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics, related ejournals, jurisprudence & legal philosophy ejournal.

Subscribe to this fee journal for more curated articles on this topic

Philosophy of Law eJournal

Subscribe to this free journal for more curated articles on this topic

Law & Politics eJournal

Political theory: political philosophy ejournal.

NDLScholarship

• < Previous

Home > NDLS_SCHOLARSHIP > NDLS_PUBS > LAW FACULTY ARTICLES > 1219

Journal Articles

What is the philosophy of law.

John Finnis , Notre Dame Law School Follow

Document Type

Publication date, publication information.

59 Am. J. Juris. 133 (2014)

The philosophy of law is not separate from but dependent upon ethics and political philosophy, which it extends by that attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which is characteristic of juridical thought for reasons articulated by the philosophy of law. Positivism is legitimate only as a thesis of, or topic within, natural law theory, which adequately incorporates it but remains transparently engaged with the ethical and political issues and challenges both perennial and peculiar to this age. The paper concludes by proposing a task for legal philosophy, in light of the fact that legal systems are not simply sets of norms.

Recommended Citation

John Finnis, What is the Philosophy of Law? , 59 Am. J. Juris. 133 (2014). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1219

Since August 28, 2015

Included in

Law and Philosophy Commons

To view the content in your browser, please download Adobe Reader or, alternately, you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.

Advanced Search

• Notify me via email or RSS
• Collections
• Disciplines
• Expert Gallery
• Digital Exhibits

Author Corner

• Kresge Law Library
• Notre Dame Law School
• University Homepage

Home | About | FAQ | My Account | Accessibility Statement

Privacy Copyright

College of Arts & Sciences

Past Dissertations

Hyperlinked dissertations are available through  Proquest Digital Dissertations .

• Search Menu

Sign in through your institution

• Advance Articles
• Editor's Choice
• Author Guidelines
• Submission Site
• Open Access Options
• Self-Archiving Policy
• About The American Journal of Jurisprudence
• About the Notre Dame Law School
• Editorial Board
• Advertising and Corporate Services
• Journals Career Network
• Dispatch Dates
• Journals on Oxford Academic
• Books on Oxford Academic
• < Previous

What is the Philosophy of Law?

• Article contents
• Figures & tables
• Supplementary Data

John Finnis, What is the Philosophy of Law?, The American Journal of Jurisprudence , Volume 59, Issue 2, December 2014, Pages 133–142, https://doi.org/10.1093/ajj/auu012

• Permissions Icon Permissions

The philosophy of law is not separate from ethics and political philosophy, but dependent upon them. It extends them by that special attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which—for reasons articulated by the philosophy of law—is characteristic of juridical thought. Positivism is coherently sustainable only as a thesis of or topic within natural law theory, which adequately incorporates it but remains engaged with ethical and political issues and challenges, both perennial and peculiar to this age. The article concludes by proposing a task for legal philosophy in coming years, in light of the fact that legal systems are not simply sets of norms.

Personal account

• Sign in with email/username & password
• Get email alerts
• Save searches
• Purchase content
• Activate your purchase/trial code
• Add your ORCID iD

Institutional access

Sign in with a library card.

• Sign in with username/password
• Recommend to your librarian
• Institutional account management
• Get help with access

Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways:

IP based access

Typically, access is provided across an institutional network to a range of IP addresses. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account.

Choose this option to get remote access when outside your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution’s website and Oxford Academic.

• Click Sign in through your institution.
• Select your institution from the list provided, which will take you to your institution's website to sign in.
• When on the institution site, please use the credentials provided by your institution. Do not use an Oxford Academic personal account.
• Following successful sign in, you will be returned to Oxford Academic.

If your institution is not listed or you cannot sign in to your institution’s website, please contact your librarian or administrator.

Enter your library card number to sign in. If you cannot sign in, please contact your librarian.

Society Members

Society member access to a journal is achieved in one of the following ways:

Sign in through society site

Many societies offer single sign-on between the society website and Oxford Academic. If you see ‘Sign in through society site’ in the sign in pane within a journal:

• Click Sign in through society site.
• When on the society site, please use the credentials provided by that society. Do not use an Oxford Academic personal account.

If you do not have a society account or have forgotten your username or password, please contact your society.

Sign in using a personal account

Some societies use Oxford Academic personal accounts to provide access to their members. See below.

A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions.

Some societies use Oxford Academic personal accounts to provide access to their members.

Viewing your signed in accounts

Click the account icon in the top right to:

• View your signed in personal account and access account management features.
• View the institutional accounts that are providing access.

Signed in but can't access content

Oxford Academic is home to a wide variety of products. The institutional subscription may not cover the content that you are trying to access. If you believe you should have access to that content, please contact your librarian.

For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.

Short-term Access

To purchase short-term access, please sign in to your personal account above.

Don't already have a personal account? Register

Email alerts

Citing articles via.

• Recommend to your Library

Affiliations

• Online ISSN 2049-6494
• Print ISSN 0065-8995
• Copyright © 2024 Notre Dame Law School
• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Rights and permissions
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

Stanford Law School's Theses and Dissertations Collection

• Early Thesis and Dissertation of Stanford Law School, 1929 to 1956
• Theses and Dissertations of Stanford Law School,1970-1995
• Stanford Program in International Legal Studies’ Theses, 1996 to 2010
• Stanford Law School’s Dissertations, 1996 to 2010
• Stanford Program in International Legal Studies Theses, 2011 to 2025

Collection Description

This collection contains Stanford Law School Students’ theses and dissertations written to fulfill the academic requirements for advanced degrees.   Historically, the collection of Theses and Dissertations were produced as part of the requirement coursework for receiving a Master of Laws (1933-1969), a Juris Doctor (1906-1932), or a Doctor of Jurisprudence.  

Currently, works received from students are produced under two different graduate programs.  Thesis are works were produced as part of the requirement for the Stanford Program in International Legal Studies (SPILS). SPILS was established in 1995 by Professors Lawrence Friedman and Thomas C. Heller, to educate international students, lawyers, judges, public officials, and other professionals trained in the study of law outside the United States.  Students in the SPILS Program are required to do interdisciplinary research that affects the global community.  The culmination of this program is a research project that each individual student develops over the course of the year under a faculty advisor, after which the earns a Master of the Science of Law degree.  The research project must demonstrate the student's ability to employ empirical methods of investigation and must addresses issues in the international community or within a specific country.  These can cover a large range of topics that analyze legal cultures, legal reforms, or public policy.  

Dissertations are produced under Doctor of Science of Law program or JSD.  The JSD program as we know it was revised for the Doctor of Jurisprudence in 1969 is designed for students who are interested in pursuing an academic career. Doctor of Science of Law Students are selected from the Stanford Program in International Legal Studies and those who have a postgraduate degree in Legal Studies.

All materials in this collection were donated by individual authors to the Stanford Law Library's Special Collections.

Collection Identity Number: LAW-3781

Finding Aid prepared by

Robert Crown Law Library Stanford, CA 94305-8610 Phone: 650.723-2477

• Last Updated: Jun 4, 2024 10:36 AM
• URL: https://guides.law.stanford.edu/c.php?g=1087208

• Stanford Home
• Maps & Directions
• Search Stanford
• Emergency Info
• Terms of Use
• Non-Discrimination
• Accessibility

© Stanford University , Stanford , California 94305 .

• Table of Contents
• Random Entry
• Chronological
• Editorial Information
• About the SEP
• Editorial Board
• How to Cite the SEP
• Special Characters
• Advanced Tools
• Support the SEP
• PDFs for SEP Friends
• Make a Donation
• SEPIA for Libraries
• Entry Contents

Bibliography

Academic tools.

• Friends PDF Preview
• Author and Citation Info
• Back to Top

Natural Law Theories

This entry considers natural law theories only as theories of law. That is not to say that legal theory can be adequately identified and pursued independently of moral and political theory. Nor is it to deny that there are worthwhile natural law theories much more concerned with foundational issues in ethics and political theory than with law or legal theory. A sample of such wider and more foundational theories is the entry Aquinas’ moral, political, and legal philosophy . In the present entry, “natural law theory” is to be taken as shorthand for natural law theories just insofar as they bear on law and are theories of or about it. This focus has the important incidental effect that many historically important differences between natural law theorists can be omitted, differences which pertain more to the foundations of normativity than to the nature and functions (“the concept”) of positive law.

Legal theorists who present or understand their theories as “positivist”, or as instances of “legal positivism”, take their theories to be opposed to, or at least clearly distinct from, natural law theory. Natural law theorists, on the other hand, did not conceive their theories in opposition to, or even as distinct from, legal positivism (contra Soper 1992 at 2395). The term “positive law” was put into wide philosophical circulation first by Aquinas, and natural law theories of his kind share, or at least make no effort to deny, many or virtually all “positivist” theses—except of course the bare thesis that natural law theories are mistaken, or the thesis that a norm is the content of an act of will. Natural law theory accepts that law can be considered and spoken of both as a sheer social fact of power and practice, and as a set of reasons for action that can be and often are sound as reasons and therefore normative for reasonable people addressed by them. This dual character of positive law is presupposed by the well-known slogan “Unjust laws are not laws.” Properly understood, that slogan indicates why—unless based upon some skeptical denial that there are any sound reasons for action (a denial which can be set aside because defending it is self-refuting)—positivist opposition to natural law theories is pointless, that is redundant: what positivists characteristically see as realities to be affirmed are already affirmed by natural law theory, and what they characteristically see as illusions to be dispelled are no part of natural law theory. But because legal theories conceived of by their authors as positivist are, by and large, dominant in the milieux of those likely to be reading this entry, it seems appropriate to refer to those theories along the way, in the hope of overcoming misunderstandings that (while stimulating certain clarifications and improvements of natural law theorizing) have generated some needless debate.

The point made in the preceding paragraph is made in another way by Orrego (Orrego 2007). When the accounts of adjudication and judicial reasoning proposed by contemporary mainstream legal theories are added to those theories’ accounts of (the concept of) law, it becomes clear that, at the level of propositions (as distinct from names, words and formulations), those theories share (though not always without self-contradiction) the principal theses about law which are proposed by classic natural law theorists such as Aquinas: (i) that law establishes reasons for action, (ii) that its rules can and presumptively (defeasibly) do create moral obligations that did not as such exist prior to the positing of the rules, (iii) that that kind of legal-moral obligation is defeated by a posited rule’s serious immorality (injustice), and (iv) that judicial and other paradigmatically legal deliberation, reasoning and judgment includes, concurrently, both natural (moral) law and (purely) positive law. Orrego’s point seems to be confirmed by, e.g., the entry on legal positivism (Green and Adams 2019). Contemporary “positivist” theories are, it seems, natural law theories, distinguished from the main body of natural law theory (a) by their denial that the theory of law (as distinct from the theory or theories of adjudication, judicial duty, citizens’ allegiance, etc.) necessarily or most appropriately tackles the related matters just listed, and accordingly (b) by the incompleteness of their theories of law, that is, the absence from them (and usually, though not always, from their accounts of those related matters) of systematic critical attention to the foundations of the moral and other normative claims that they make or presuppose.

In short: a natural law theory of (the nature of) law seeks both to give an account of the facticity of law and to answer questions that remain central to understanding law. As listed by Green 2019 (having observed that “No legal philosopher can be only a legal positivist”), these further questions (which “legal positivism does not aspire to answer”) are: What kinds of things could possibly count as the merits of law? What role should law play in adjudication? What claim has law on our obedience? What laws should we have? And should we have law at all? All these questions, though organized and articulated a little differently, are under consideration in the present entry.

1.1 Basic reasons for action and the need for governmental authority

1.2 political authority as remedy for anarchy, injustice and impoverishment, 1.3 rule of law as remedy for the dangers in having rulers, 1.4 ius gentium—ius cogens—mala in se —human rights: legal rules and rights posited because morally necessary parts of any legal system, 1.5 “purely positive law”: determinationes and their legal-moral authority for citizens and judges (facts made reasons for action), 2. human persons are not law’s creatures but its proper point, 3.1 adjudicating between exclusive and inclusive legal positivism, 3.2 natural law and (purely) positive law as concurrent dimensions of legal reasoning, 3.3 implications of the rule-of-law need for positivity, 4. “ lex iniusta non est lex ” do seriously unjust laws bind legally, 5. can general theories of law be value-free moral-value-free, 6.1 intention in action and utterance, 6.2 responsibility and punishment, 6.3 each legal system is of and for a particular political community, other internet resources, related entries, 1. enabling positivity: social facts made reasons for action.

The fulcrum and central question of natural law theories of law is: How and why can law, and its positing in legislation, judicial decisions, and customs, give its subjects sound reason for acting in accordance with it? How can a rule’s, a judgment’s, or an institution’s legal (“formal,” “systemic”) validity, or its facticity or efficacy as a social phenomenon (e.g., of official practice), make it authoritative in its subject’s deliberations?

The sense and force of these questions, and the main features of the kind of answer given by natural law theories, can be given a preliminary indication. On the one hand, natural law theory holds that law’s “source-based character”—its dependence upon social facts such as legislation, custom or judicially established precedents—is a fundamental and primary element in “law’s capacity to advance the common good, to secure human rights, or to govern with integrity” (cf. Green and Adams 2019). On the other hand (cf. Green 2003), the question “whether law is of its very nature morally problematic” has from the outset been the subject of consideration by leaders of the tradition. (The first issue that Aquinas takes up about human law in his set-piece discussion of law, Summa Theologiae , I-II, q. 95 a. 1, is whether human law [positive law] is beneficial—might we not do better with exhortations and warnings, or with judges appointed simply to “do justice”, or with wise leaders ruling as they see fit? And see I.3 below.) Classic and leading contemporary texts of natural law theory treat law as morally problematic, understanding it as a normally indispensable instrument of great good but one that readily becomes an instrument of great evil unless its authors steadily and vigilantly make it good by recognizing and fulfilling their moral duties to do so, both in settling the content of its rules and principles and in the procedures and institutions by which they make and administer it. Natural law theories all understand law as a remedy against the great evils of, on the one side anarchy (lawlessness), and on the other side tyranny. And one of tyranny’s characteristic forms is the co-optation of law to deploy it as a mask for fundamentally lawless decisions cloaked in the forms of law and legality.

If one thinks perceptively and carefully about what to pursue (or shun) and do (or forbear from), one can readily understand and assent to practical propositions such as that life and health, knowledge, and harmony with other people are desirable for oneself and anyone else. The intrinsic desirability of such states of affairs as one’s flourishing in life and health, in knowledge and in friendly relations with others, is articulated in foundational, underived principles of practical reasoning (reasoning towards choice and action). Such first principles of practical reasoning direct one to actions and dispositions and arrangements that promote such intelligible goods, and that directiveness or normativity is expressed by “I should…” or “I ought…” in senses which although truly normative are only incipiently moral.

A natural law moral theory will give an account of the way in which first principles of practical reason take on a moral force by being considered, not one by one but in their united (“integral”) directiveness. That integral directiveness is given specific (albeit highly general) articulation in principles such as the injunction to love one’s neighbor as oneself; or the Golden Rule of doing for others what you would want them to do for you and not doing to others what you would not have them do to you; or the “categorical imperatives” to respect, and treat as intrinsically valuable, humanity (the basic aspects of human flourishing) in oneself and in others, so that each of one’s communities is treated as a kingdom of ends—of persons each ends in themselves. Such high-level but far from contentless moral principles can be given further specificity in two ways (1) by identifying what, given some broadly stable features of human reality, they entail (see 1.2–4), and (2) by a rational but more or less non-deductive selection among alternative specifications, a selection named by Aquinas determinatio (plural, determinationes ) (see 1.5). Political communities are a kind of institution whose rational status as a normally desirable and obligatory objective of and context for collaborative action (and forbearance) can easily be seen to be entailed by the foundational practical and moral principles. In such communities, the normal means for making the needed determinationes is the institution of governmental authority acting in the first instance through legislation and other forms of law-making, i.e., acting as a social-fact source of positive (posited) law.

The political-theoretical part of natural law theory explains and elaborates the grounds and proper forms of governmental authority. It explains the similarities and differences between the practical authority of rulers (including democratic electors acting as selectors of representatives or as plebiscitary decision-makers) and the theoretical authority of experts and persons of sound judgment. It shows the grounds for instituting and accepting practical authority as an almost invariably necessary means for preventing forms of harm and neglect which, because contrary to the high-level moral principles (at least as they bear on relationships between persons), involve injustice. Political theory subsumes, as one of its branches, legal theory. As legal theory, political theory explains the normal desirability that governmental authority in political communities be exercised within the framework of (in the classic slogan) a “rule of law and not of men” (1.3).

1.1.1 Why “natural” law? Naturalistic fallacy?

What does the mainstream of natural law theory intend by using the word “natural” in that name for the theory? The shortest accurate answer is “of reason,” as in “the law of reason” or “the requirements of reason.” Aquinas is particularly clear and explicit that in this context, “natural” is predicated of something (say, a law, or a virtue) only when and because that of which it is predicated is in line with reason, practical reason, or practical reason’s requirements: see Finnis 1980, 35–6. Moreover, he employs, through all his works, a methodological axiom: X ’s nature is understood by understanding X ’s capacities, which are understood by understanding their act[uation]s, which are understood by understanding their objects. But the objects of chosen acts are the intelligible intrinsic goods (aspects of human flourishing) which we are directed to by practical reason’s first principles. So the equation, in this context, of “natural” and “rational” and its cognates is no mere confusion, but grounded in a sophisticated distinction between ontology and epistemology: in the order of being, what is good and reasonable for us is a resultant of what is foundational, our given nature; but in the order of coming to know, our knowledge of our nature is in significant part a resultant of our understanding of what kinds of possible objects of choice are good.

Though the core of classic and mainstream natural law theory is thus untainted by any “naturalistic fallacy” (Finnis 2018, 2.4.2), non-practical knowledge of facts counts, in that theory, in various ways. Knowledge of the factual possibility of (say) acquiring knowledge, or of losing or saving life, is a datum (not really a premise) for the understanding that such a possibility is also an opportunity—that actualizing the possibility would be good for oneself and others. Other kinds of relevant facts include the facts about certain human radical capacities and their absence in other animals—these facts are the data for the insight into the sense and bounds of the class (persons, human beings) of “others” in “good for oneself and others.” Or again, facts about the limited supply of resources and the limited strength of human will (the need for incentives, etc.) make (1.5) appropriation of resources to particular owners a normal requirement of justice to non-owners and owners alike.

The texts that are earliest (e.g., the Platonic or pseudo-Platonic Minos : Lewis 2006) and most foundational (e.g., Plato’s Gorgias, Republic and Laws , and Aristotle’s Politics ) in the tradition of natural law theory remind their readers of the evident evils of anarchy: a condition of things in which no person or body of persons efficaciously claims or is accepted widely as having authority to restrict the use of violence, theft and fraud, and in which any conventional norms of conduct are made hollow by irresolvable disputes about their content and/or their application. In such a state of affairs, the more strong, cunning and ruthless prey on the less, education of children (which calls for resources outside the family) is difficult to accomplish, and economic activity remains stunted by the insecurity of holdings and the unreliability of undertakings. There is evident need for persons who will articulate and enforce standards of conduct which will tend to promote the common good of bodily security, stable access to resources, cooperation in economic and educational activities, and rectification (by punishment, compensation and restitution) of at least the grosser inter-personal injuries of commission and neglect. To articulate that need is to state the reasons for instituting and supporting political authority, notably state government and law, on condition that these institutions carry on their legislative, executive and judicial activities substantially for the common good of the inhabitants of the relevant territory, rather than in the interests of a segment of the population unfairly indifferent or hostile to the interests and wellbeing of other segments.

Aristotle ( Politics III.15.1286a–IV 4 1292a) vigorously debates the question whether political authority is better exercised through a “rule [primacy, supremacy] of law” or “a rule of men,” say of one best person, or a democratic assembly, or indeed ( Rhetoric I 1 1354a32–b16) a court. He takes his arguments to suggest the answer that in almost all societies, on almost all occasions and issues, it is preferable that government be by or in accordance with law, since (i) laws are products of reason(s) not passion(s), (ii) the sovereignty of a ruler or assembly tends to tyranny (i.e., rule in interests of a section, not common good), (iii) equality demands that each mature person have some share in governing, and (iv) rotation of offices and office-holders is desirable and can hardly be managed without legal regulation. So for Aristotle, the central case of practical authority is government of a polis by law and legally regulated rulers.

Thomas Aquinas’ account of human positive law treats the central case of government as the self-government of a free people by the rulers and institutions which that people has appointed for that purpose, and the central case of law is the co-ordination of willing subjects by law which, by its public character (promulgation), clarity, generality, stability and practicability, treats those subjects as partners in public reason ( Summa Theologiae I-II q. 90 a. 4c; q. 95 a. 3c; q. 96 a. 1; q. 97 a. 2). For he defines law as universal (in the logician’s sense of “universal”) practical propositions conceived in the reason of the ruler(s) and communicated to the reason of the ruled so that the latter will treat those propositions, at least presumptively, as reasons for action—reasons as decisive for each of them as if each had conceived and adopted them by personal judgment and choice.

Lon Fuller 1969, acknowledging Aquinas’ lead in this discussion of formal and procedural aspects of legal system, pulls together Aquinas’ scattered and fragmentary remarks about them into an orderly list of eight elements of the rule of law , that is of la primauté du droit , the legal system of a Rechtsstaat . He shows that these hang together as a set of desiderata (or requirements) because they are implications or specifications of the aspiration and duty to treat people as presumptively entitled—as a matter of fairness and justice—to be ruled as free persons, fundamentally the equals of their rulers, not puppets or pawns to be managed and kept in order by manipulation, uncertainty, fear, etc. The normal result of such fairness in the procedures of making and maintaining the law will be to strengthen the law’s efficacy, too. Unfortunately, the surface of Fuller’s text gives more prominence to effectiveness than to fairness, and many critics (e.g., Hart, Dworkin), overlooking the moral connotations of Fuller’s allusions to reciprocity between rulers and ruled, thought his book’s title, The Morality of Law , a misnomer. This thesis has been elaborated more carefully and on a different basis by Raz 1979 and Kramer 2004a and 2004b: although the rule of law (and compliance with it) can be morally important and even a moral virtue (because normally necessary for fully just government in a just society, and especially for alleviating dangers that arise from the existence of political authority, and of law itself), it is nonetheless in itself morally neutral since (in states which employ the forms of law) it will normally be needed even by deeply unjust rulers for advancing their immoral purposes. It is like a sharp knife, whose sharpness makes it apt for life-saving surgery but equally for stealthy callous murders (Raz 1979, 224–6).

Finnis 1980 (273–4) and Simmonds 2004, 2005, 2006, 2007 have challenged the quasi-empirical claim that even vicious tyrants need or find it apt, for the efficacy of their domination, to comply with the requirements of the rule of law. The eighth of Fuller’s elements of the rule of law, viz. adherence by the rulers to their own rules in their conduct of government, is especially obstructive, rather than supportive, of a tyranny’s purposes. But the focus of Fuller’s concern, and the most fruitful locus of debate, is not so much on historical or sociological phenomena or causalities as on the “internal,” practical reasons at stake. If the rulers somewhere do not respect the rights and interests of some of their subjects in relation to issues of substance (life, bodily security, freedom, property, and so forth), why should the rulers—what reason have they to—respect their subjects’ rights or interests in the matters of procedure involved in the rule of law (giving them fair notice of what is expected of them, and adhering as rulers to the promulgated law when assessing these subjects’ conduct and in other governmental dealings with those subjects)? A more or less inconsistent willingness of rulers to tie their own hands by scrupulous adherence to procedural justice while yet being substantively unjust, is of course psychologically possible. But Fuller’s primary concern, like that of the wider tradition of natural law theory, is with rationality and the specific implication of fully coherent reasonableness: morally reasonable judgment and choice.

Fuller offered a merely procedural natural law theory, though he did not deny that a substantive natural law theory is possible and appropriate. And indeed there is no sufficient reason to follow him in restricting the range of practical-theoretical reflection on what is needed for a political society worthy of the self-restraints and acceptance of responsibilities that the law requires of those to whom it applies. For it is clear that the procedures and institutions of law are in the service of substantive purposes: the restriction of violence, theft and fraud, the recovery of things misappropriated from their lawful owners or possessors, and of losses wrongfully imposed, protection of intangible goods such as reputation against unwarranted defamation, and of the immature, the mentally disabled and other vulnerable people against sexual or other exploitation, and so forth.

That portion of our positive law which consists of legal principles or rules giving effect to purposes such as those just listed was often named, by natural law theories, ius [or jus ] gentium . Minted by jurists of classical Roman law such as Gaius (c. 165 AD), this name—literally “the law of peoples”—alludes to the set of rules and principles found in similar if not identical forms in virtually all legal systems. The reason for their ubiquity is, generally speaking, that any reasonable consideration of what it takes for individuals, families and other associations to live together in political society, tolerably well, will identify these principles and rules as necessary. In modern law they are picked out, in principle, by names such as “the general principles of law recognized by civilized nations” (Statute of the International Court of Justice, art. 38), ius cogens erga omnes (literally “law that is compelling [obligatory without agreement or enactment or other forms of adoption] in relation to [for/on, ‘against’] everyone”), “higher law”, or “fundamental human rights.” In Aquinas’s theory of law, they are referred to as conclusions (entailments) of the very highest-level, most general moral principles. In the common law tradition, the legal wrongs picked out by such principles have been called mala in se , as distinct from mala prohibita —things wrong in themselves as distinct from things wrong only because prohibited by (positive) law—and this distinction remains, for good reason, in use in judicial reasoning.

Some legal theories speak of these principles and rules as belonging to law by a kind of “conceptual” necessity. Hart (1961) can be so read. But even Hart’s account, on closer examination, identifies the relevant necessity not as conceptual or linguistic but as an instance of the rational necessity of means needed to secure purposes which are non-optional. It was for this reason that Hart spoke of them as constituting “the minimum content of natural law.” He would have expressed his own meaning more perspicuously had he spoken instead of “the minimum content of positive law, the minimum set of principles which, because rationally necessitated —given certain fundamental ‘truisms’ about human nature and the human predicament—for the securing of purposes shared by all survivable human societies, can be called natural law.” The fact is that these elements of our law are both positive (made and part of official practice) and natural (rationally required for at least minimal human flourishing).

These issues are discussed further in Section 3 below.

Natural law theory of law has its most distinctive characteristic in its account of purely positive law which, though “entirely” dependent for its legal status on the fact that it has been authoritatively posited by some persons(s) or institution, nonetheless shares in law’s characteristic of entailing—albeit presumptively and defeasibly—a moral obligation of compliance. About these rules of a positive legal system, Aquinas says that, though they certainly should be, and be presumed to have been, “ derived from natural law”, they have their legal force only from their part in this posited system ( ex sola lege humana vigorem habent : ST I-II, q. 95 a. 3).

His explanation, slightly updated: this very large part of our law could reasonably have been different, in the way that every detail of a maternity hospital could have been somewhat different and large portions of the design could have been very different, even though some features (e.g., that the doors and ceilings are more than two feet high) are entailed by the commission to build a town maternity hospital, and every feature has some rational connection with the commission. The kind of rational connection that holds even where the architect has wide freedom to choose amongst indefinitely many alternatives is called by Aquinas a determinatio of principle(s)—a kind of concretization of the general, a particularization yoking the rational necessity of the principle with a freedom (of the law-maker) to choose between alternative concretizations, a freedom which includes even elements of (in a benign sense) arbitrariness.

Once the determinatio is validly made, fulfilling the criteria of validity provided by or under the relevant legal system’s constitutional law, it changes the pre-existing state of the law by introducing a new or amended legal rule and proposition(s) of law. The new or amended legal rule gives judges, other officials, and citizens a new or amended reason for action (or forbearance). The fact that the new or amended rule depends upon the social-fact source constituted or employed by the act of determinatio does not entail that a normative reason (an “ought”) is being illogically derived from a bare fact (an “is”). Rather, the new or amended rule is normative, directive and (where that is its legal meaning ) obligatory because that social fact can be the second premise in a practical syllogism whose first premise is normative: “there ought to be a maternity hospital in this town,” “people ought to be protected against homicidal assault,” “people ought to be required to contribute to the public expenses of appropriate governmental functions”, “victims of assault, theft, broken contracts, negligence, etc., ought to be compensated,” “road traffic should be regulated to reduce damaging collisions,” and so forth. The moral normativity of the principle is replicated in the more specified rule created by the determinatio , even though the latter is not an entailment of the former.

That is to say: the concretized rule is (morally as well as legally) normative because such normativity is (presumptively and defeasibly) entailed by the (moral) principle that the common good (whose fundamental content is given by the foundational principles of practical reason: 1.1) requires that authoritative institutions take action to specify, apply and enforce some rules on the relevant matters. Social facts make a positive legal rule a reason for action because the desirability of authority as a means of securing common good, and the desirability of the “rule of law and not of men,” are standing and potent reasons for acknowledging such facts as an instance of valid legislation giving presumptively sufficient reason for compliance. Purely positive law that is legally valid is (presumptively and defeasibly) valid and binding morally—has the moral form or meaning of legal obligatoriness —when and because it takes its place in a scheme of practical reasoning whose proximate starting point is the moral need for justice and peace, and whose more foundational starting-point is the range of basic ways in which human wellbeing can be promoted and protected, the way picked out in practical reason’s first principles.

Thus, in relation to the settled positive law, natural law theory—as is acknowledged by a number of legal positivists, (e.g., Raz 1980, 213; Gardner 2001, 227)—shares the principal thesis of contemporary legal positivists, that laws depend for their existence and validity on social facts.

1.5.1 “Presumptive” and “defeasible” obligatoriness

The legal-moral obligation or obligatoriness of a legal rule is counterpart to the legal-moral authority or authoritativeness of its author (enacter) or other source. The idea of authority has been clarified by contemporary legal theorists such as Raz and Hart, by reflection upon the kind of reasons for action purportedly given to potentially acting subjects by an exercise of practical authority. The relevant kind of practical reason has been variously called exclusionary, peremptory or pre-emptive, and content-independent. The core idea is that subjects are instructed to treat the proffered reason (say, a statutory provision, or a judicial order), in their deliberations towards choice and action, as a reason which does not simply add to the reasons they already have for acting one way rather another, but rather excludes and takes the place of some of those reasons. And this exclusionary, peremptory or pre-emptive force is owed not to the inherent attractiveness to reason of the (content of the) proffered reason, but to the status of its author or other source as one entitled—for example, by its role in a constitutional scheme of governance for the solution of a political community’s coordination problems—to be obeyed, complied with, treated as authoritative. See e.g., Raz 1986, 35–69. This content-independence of authoritative reasons entails their presumptive obligatoriness. The defeasibility of that presumption is entailed by the dependence of such reasons’ peremptory, pre-emptive or exclusionary force upon a background of presupposed basic human needs and goods, and of basic moral principles and norms, a background which entails that if a purportedly authoritative proffered (posited) reason conflicts sufficiently clearly with those standing needs, goods, principles or norms its exclusionary force is exhausted or overcome and the purported obligatoriness defeated.

Less abstractly put, both the effectiveness of laws as solutions to coordination problems and promoters of common good, and the fairness of demanding adherence to them, are dependent upon their being treated both by the subjects and the administrators of the legal system as legally and morally entitled, precisely as validly made law, to prevail against all other reasons save competing moral obligations of greater strength. It is this entitlement that is negated by the serious injustice of a law or legal system: see 3 and 4 below.

Talk of human flourishing’s or wellbeing’s aspects, and of principles of practical reason, should not be allowed to distract attention from an important truth, implicit both in classical Greek and Roman philosophical and juristic treatments of justice and in modern juristic attributions of human rights. Indeed, the Universal Declaration of Human Rights (1948) links the two traditions of discourse by placing at the head of its articulation of human rights the core (“all human beings are born free and equal in dignity and rights”) of the Roman juristic saying ( Institutes 1.2.2) that “by nature, from the outset, all human beings were born free and equal,” a saying about iustitia , justice as a ground and standard for ius , law. The same Roman law texts, promulgated as permanent law by Justinian 533–535 AD, state more than once that law’s point (its “final” causa , explanatory reason) is the human persons for whose sake it is made, that is, all human persons until the time when the ius gentium , the common law of peoples, was distorted by wars and slavery. Law, fit to take a directive place in practical reasoning towards morally sound judgment, is for the sake of human persons: all the members of the community regulated by that law and all other persons within that law’s ambit.

That thesis falls within those parts of legal theory that are acknowledged but not much explored by contemporary legal positivists. It was ignored and in effect denied by earlier forms of legal positivism more ambitious to cover the whole of legal philosophy, e.g., Kelsen’s. Kelsen denied that persons were known either to law or to a proper legal theory or science of law, except insofar as they were made the subject of a posited legal rule. But against this restriction, which has misled some courts which have treated Kelsenian legal science as a guide to judicial reasoning, it can be said (Finnis 2000) that the fundamental equality and dignity of human beings should defended as part of a rationally sound understanding (concept) of law. This defense requires an account of the difference between capacities which are activated here and now, or are more or less ready to be so actuated, and radical capacities such as exist in the epigenetic primordia of even very young human beings, and in the genetic and somatic constitution of even the severely disabled. Though such an account makes possible a defense of the fundamental equality of human beings, and thus a humanist legal theory, the point of the account is not to privilege a biological species as such, but to affirm the juridical significance of the status of persons—substances of a rational nature—as inherently the bearers ( subjects ) of rights of a kind different and more respect-worthy and end -like than the rights which are often, as a matter of technical means , attributed by law to animals, idols, ships or other objects of legal proceedings.

3. Legal principles to remedy defective positive law

The so-called positivist thesis that all law depends for its existence, validity and obligatoriness on its social-fact source(s) is often accompanied, as in Raz’s “exclusive legal positivism” (Raz 1980, 212–24; Raz 1985), by the thesis that judges, as the “primary law-applying institutions,” have a duty (moral, if not also legal) to decide certain sorts of case (e.g., cases where the existing legal rule would by work injustice) by applying moral principles or rules which warrant amending or even abandoning part of the existing law. “Inclusive” legal positivists temper this by holding that the judicial duty and authorization to depart from existing law by applying moral rules or principles is restricted to those classes of case where an existing social-fact sourced legal rule directs the court do so; the effect of such a directive, it is said, is to include within the legal system the moral rules or principles (if any) thus pointed to.

Natural law theory concurs with Raz and Gardner in rejecting the inclusivist restriction as ungrounded, but dissents from them in holding (as Dworkin does too: Dworkin 1978, 47) that any moral rule or principle which a court is bound to apply (or reasonably can apply), precisely as a court, can reasonably be counted or acknowledged as a law, i.e., as a rule or principle which should be considered already part of our law. Against positivists generally, it holds that (i) little or nothing turns on whether or not moral principles binding on courts precisely as courts should be called part of our law; but (ii) if something does turn on the name—if, for example, it be recalled that courts cannot “take judicial notice” of any rule or principle not “part of our law” (and so, as in respect of rules of foreign law, have to hear evidence of the rule’s existence and content)—it is sounder to say that judicially applicable moral rules and principles (unlike applicable foreign law) are ipso iure (i.e., precisely as morally and judicially applicable) rules of law . Such rules belong to the ius gentium portion of our law.

Does this amount to acknowledging that natural law theory is significantly less concerned than contemporary legal positivist theories to establish the precise boundaries and content of the social-fact sourced (posited, purely positive) law of our community? Not really. For (i) contemporary legal positivist theories have abandoned the thesis of “classical” legal positivists such as Bentham that judges and citizens alike should (as a matter of political-moral obligation) comply with the positive law of their community: their treatises or essays on legal theory explicitly or implicitly commend to judges as much as citizens the Hartian “This is law; but it is too iniquitous to be applied or obeyed” (Hart 1961, 203; 1994, 208) rather than the Benthamite “Under a government of laws … obey punctually and … censure freely” (Bentham 1776); so the concern of contemporary legal positivists to distinguish posited law from other standards for sound and legitimate adjudication turns out, in the last analysis (and despite appearances), to be merely provisional. And on the other hand (ii) natural law theories hold as strongly as any positivist theory that sound and legitimate adjudication gives priority to a conscientious and craftsmanlike attention to social-fact sources and to rules and principles pedigreed by such sources, sets them aside only if and to the extent that they are “too iniquitous to be applied”, and tailors the resultant new rule so as to cohere as far as possible with all the other (not too iniquitous) doctrines, rules and principles of the particular legal system in which the judge has jurisdiction.

3.1.1 A test case: the Nuremberg question

The persons known as major German war criminals were tried in 1945 for offenses specified in an agreement (“the London Agreement and Charter of 8 August 1945”) made between the states governing Germany since its surrender to them. The judges held that the defendants had at all relevant times been bound by (and in many instances had acted in violation of) the principles or rules specified in the London Charter, such obligations being derived not, of course, from the agreement (which was made subsequent to the acts in question), but rather, as to some of the crimes alleged, from international law and, as to the alleged “crimes against humanity,” from the “elementary dictates of humanity.” To hold the defendants responsible for violating these rules and dictates, and reject any argument that their acts’ compliance with German law could make them lawful acts, was not (so the tribunal ruled) to violate the principle of law and justice that no one should be punished except for violation of law .

The result of these rulings might be accounted for (i) by exclusive positivism: the tribunal was morally authorized to apply moral rules, notwithstanding that the rules so applied were not rules of law either at the time of the crimes or the time of the prosecution. But the terms of the rulings (as just summarized) can be accounted for (ii) by inclusive positivism: the Charter was positive law for the tribunal and directed it to apply moral rules which by virtue of that legal direction were also legal rules. Still, (iii) natural law theory’s account seems the most explanatory: the moral rules applied were also rules of the “higher law” applicable in all times and places (and thus in Germany and its territories, before as after the Charter) as a source of argumentation and judgment “according to law” when the social-fact sources which are the normally dominant and quasi-exclusive source of law are, in justice, inadequate and insufficient guides to fulfilling obligations such as the judicial obligation to do justice according to law, or everyone’s obligation to behave with elementary humanity even when under orders not to—even if those orders have intra-systemic legal validity according to the formal or social-fact criteria of some existing legal system. And if one has doubts about victors’ justice, those very doubts can likewise appeal to principles of the same higher law, ius gentium , or law of reason and humanity.

Natural law theory of law thus finds itself, in this respect, approximated to by Ronald Dworkin’s account of law and adjudication, not only in frontier situations like Nuremberg but also in the day-to-day working of a sophisticated legal system. Normal adjudication and judicial reasoning has two dimensions or criteria for distinguishing correctness from incorrectness in judgments. One dimension comprises social-fact sources (statutes, precedents, practice, etc.), called by Dworkin “legal materials.” The other dimension comprises moral standards, presumptively those prevalent in the judge’s community but in the last analysis just those standards that the judge can accept as in truth morally sound. An interpretation of our law which is morally sounder will be legally correct even if it fits the legal materials less closely than alternative interpretations, provided that it fits those social-fact sources “enough.” The moral standards thus applied, which Dworkin (in line with natural law theory) treats as capable of being morally objective and true, thus function as a direct source of law (or justification for judicial decision) and, in a certain sense, as already law, except when their fit with the whole set of social-fact sources in the relevant community is so weak that it would be more accurate (according to Dworkin) to say that judges who apply them are applying morality not law (and thus, if they said they were applying law, would be mistaken or lying—a lie which Dworkin considers sometimes commendable). Dworkin 1978, 326–7, 340.

A theory of law which, unlike Dworkin’s, places itself plainly in the tradition of natural law theorizing will be likely to depart from these positions in two ways. (i) It will not accept Dworkin’s thesis that even in very hard cases there is one uniquely correct answer in law; it will deny his assumption that there is a uniquely correct and rationally identifiable measure of how much fit with existing legal materials (social-fact sources) is “enough” (necessary and sufficient) to license using moral standards to identify the legally correct interpretation of the law. In the absence of such a single measure, legal reasoning must often—and in very hard cases, usually—be content to show that two or three alternative interpretations are distinguished from an indefinitely large number of other interpretations by being correct, that is, not wrong (albeit not uniquely correct). (ii) When judges, in order to avoid grave injustice, depart from the settled understanding of the law (and perhaps from the clear terms of a decree) and apply an alternative, morally mandated interpretation, regarding themselves as licensed to do so by the higher law of reason, nature and humanity, they need not be lying if they say that in doing so they are both rectifying and applying the law (of their state). See 4 below.

In line with Dworkin’s two-dimensions account (thus qualified), natural law theory will assent to the thesis that Green makes characteristic of legal positivism:

[1] the fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and [2] the fact that [a law] is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting [that it is law].

For as to [1]: what the rule of law and not of men calls for is the institution of legal system , a corpus iuris , and so what a principle of morality (natural law) or ius gentium implies would be an appropriate rule of law is, nevertheless, not yet a part of our law—still less is a mere “policy” made law by being “prudent” or “efficient”—unless its content, conceptualization and form are so shaped, whether in judicial or other juristic thinking or in judgment or legislation, as to cohere with the other parts (especially neighboring parts) of our law.

As to [2]: A natural law theory, mindful of the normal desirability of a rule of law and not of judges (see 1.3), may well be more cautious than Dworkin himself is in departing from the settled (social-fact source-based) law. On those occasions where such a departure is morally warranted, the theory will suggest that the judge is authorized to proceed according to the higher and perennial law of humanity, the ius gentium or set of universal principles of law and justice common to all civilized peoples, which deprives settled law—more precisely, what has been accepted in the jurisdiction as being settled law—of its directiveness for subjects and judges alike. Is this moral authorization also ‘legal’ and “according to law”? Is the settled law which the judge is morally authorized to set aside thereby being treated, even prior to the judge’s handing down of judgment, as not law? The following section argues that that question should be answered both Yes and No.

In such a case, does the law as settled by social-fact sources, in losing its directiveness for judges and citizens, lose also its legal validity? The answer depends upon the discursive context in which the question arises. If a course of reflection or discourse makes it appropriate to acknowledge the rule’s “settled” or “posited” character as cognizable by reference to social-fact sources, one can say that it is legally valid though too unjust to be obeyed or applied. Or if the discursive context makes it appropriate instead to point up its lack of directiveness for judges and subjects alike, one can say that the rule, despite its links to social-fact sources, is not only not morally directive but is also legally invalid. Each way of speaking tells an important part of the truth, or rather, tells the truth with an emphasis which differs from the other’s.

The meaning of “an unjust law is not a law” is essentially identical to Hart’s “This is law but too iniquitous to be applied or obeyed” (or availed of as a defense). The excitement and hostility aroused amongst modern legal theorists (notably Hart) by the former way of speaking is unwarranted. No one has difficulty in understanding locutions such as “an invalid argument is no argument,” “a disloyal friend is not a friend,” “a quack medicine is not medicine,” and so forth. “ Lex iniusta non est lex ” has the same logic; it acknowledges, in its opening words, that what is in question is in certain important respects—perhaps normally and presumptively decisive respects— a law , but then in its withdrawal or denial of that predicate it affirms that, since justice is the very point of having and respecting law at all, this particular law’s deficiency in justice deprives it of the decisive significance which all law purports to have. It is thus law only in a sense that should be judged—especially when law is regarded, as by Hart himself, as a kind of reason or purported reason for action—to be a distorted and secondary, non-central sense.

Note: Classical political theory, as expounded by Plato, Aristotle and Aquinas, makes regular use of this distinction between central and perverted or otherwise marginal instances of an analogical concept or term, and so Aquinas never says simply “unjust law is not law” but rather “unjust law is not straightforwardly or unqualifiedly [ simpliciter ] law” or “is a perversion of law”, and similar statements. Still, he does elsewhere say that “an unjust judgment [of a court] is not a judgment” and it seems clear that he might similarly have used the simplified or slogan-form locution, about law, as short-hand.

All this seems to have been overlooked by Hart in his polemic (Hart 1961, 204–7; 1994, 208–12) against “ lex iniusta non est lex .” Hart’s argument that use of the slogan must tend to discourage or confuse the moral critique of law seems historically and logically indefensible. The slogan is unintelligible save as an expression of and incitement to engaging in such critiques; it can scarcely be rejected without first misquoting it, as Hart and those who employ his argument almost invariably do, averting their gaze from the slogan’s first predication and implied assertion: that the unjust rule in question is a rule of law .

Some theories have adopted certain main tenets of natural law theory, and professed to be natural law theories, but have asserted that even the most unjust laws create an obligation to obey which is both legal and moral. Kant’s (see Alexy 2002, 117–121) is such a theory: a legal system can consist entirely of positive law but must be “preceded by a natural law that establishe[s] the legislator’s authority…to bind others simply by his arbitrary action.” But this purported natural-law basic norm looks not to the justice of the content of the posited legal rules, but exclusively to the need for legal certainty and civic peace, which Kant takes to exclude any right to resist unjust laws and any denial that they are fully legal. Alexy has pointed out the confusions and inconsistencies in Kant’s attempts to evade the classic position that laws whose injustice is sufficiently grave can and should be denied to have the legal character predicable of laws that citizens and courts, precisely as courts, are morally and juridically entitled to treat as—or as if they are—not law. In this as in many other respects, seventeenth and eighteenth century philosophical developments (like their twentieth and twenty-first century counterparts) were not so much progress as regress. But precisely how the classic position itself should be formulated, explained and applied today is debated between Alexy, Finnis and others (Alexy 2013; Finnis 2014; Crowe 2019).

Descriptions of the valuations made by particular persons or societies can of course be value-free. Doubtless the historian, detective or other observer thinks there is some value in making the investigation and resultant description, but that valuation in no way need enter into the description. Still less need the description either approve or disapprove of the valuations which it reports. But the situation is different if one’s aspiration is to offer a general account of human practices or institutions, such as law , friendship, constitutions, and so forth. Here one confronts the necessity of selecting and prioritizing not merely the investigation itself but rather some one set of concepts (and corresponding terms) from among (or over and above) the range of terms and concepts already employed in the self-understanding of the individuals and groups under (or available for) study.

Where the subject-matter of the projected descriptive general account is some practice or institution devised by (more or less adequate exercises of) reason, and addressed to the rational deliberations of individuals and groups, there will normally be no good reason not to prioritise those forms of the practice or institution which are more rational, more reasonable, more responsive to reasons, than other forms of the “same” or analogous practices and institutions. The standard for assessing reasonableness for this theoretical purpose is, in the last analysis, the set of criteria of reasonableness that the descriptive theorist would use in dealing with similar practical issues in his or her own life.

This necessity of value-laden selection of concepts and terms for use in a general theory of social realities such as law is evidenced in the work of Max Weber, prophet of “value-free” social science. His account, for example, of forms of domination ( Herrschaft ) identifies three pure, central, characteristic types ( Idealtypen ): charismatic, traditional, and rational (bureaucratic, legal). But the accounts of the first two types are almost entirely in terms of how they differ from the rational type, whose rationality is self-evident to Weber and his readers on the basis of their own knowledge of human goods (basic aspects of human wellbeing) and related practical truths. See Finnis 1985, 170–72. Natural law theory, as one sees it practiced already in Aristotle’s Ethics and Politics , makes these valuations by the theorist overt and explicit (not hidden and embarrassed), and subjects them to rational scrutiny and debate.

Raz, Dickson, and others accept that some such valuation is necessary, but deny that it is moral: Dickson 2001. But once one begins to deal in reasons, can anything other than good reasons count? If moral reason is nothing more than practical reason at full stretch, fully critical and adequate as reason, moral reasons will have a decisive place in concept-formation in social science including descriptive general theory of law. And this will not have the effect feared by Hart, viz. of leaving the study of wicked laws or institutions to some other discipline: Hart 1961, 205; 1994, 209. On the contrary, they are a subject of lively attention in such a theory, precisely because of their opposition to legal systems of a (substantively and procedurally) morally good kind. Aristotle’s Politics , though not methodologically flawless overall, is a primary witness to this sort of clear-eyed acknowledgment and depiction of unreasonable social forms, practices and institutions within a descriptive theory oriented by the moral judgments of the theorist.

Still, descriptive social theory is only a subordinate aspect of natural law theories of law. Their primary focus is typically on identifying the conditions under which law is justified, both in the sense in which law can and should be preferable to anarchy or tyranny or even benevolent “rule of men,” and in the sense in which this or that legal principle, institution or rule can be judged to be preferable to alternative reasons or purported reasons for action. As Green 2003 says:

Evaluative argument is, of course, central to the philosophy of law more generally. No legal philosopher can be only a legal positivist. A complete theory of law requires also an account of what kinds of things could possibly count as merits of law (must law be efficient or elegant as well as just?); of what role law should play in adjudication (should valid law always be applied?); of what claim law has on our obedience (is there a duty to obey?); and also of the pivotal questions of what laws we should have and whether we should have law at all. Legal positivism does not aspire to answer these questions, though its claim that the existence and content of law depends only on social facts does give them shape.

Might it not be better to say: no legal philosopher need, or should, be a legal positivist? For law’s dependence upon social facts is fully acknowledged, and also accounted for, in natural law theories of law. And this is not a “concession” by natural law theorists, for their main positions were clearly articulated by Aquinas, many centuries before legal positivism emerged with its challenge to (what it took to be) natural law theory. Positivist critiques of natural law theory, when they do not rest upon scepticism about the possibility of moral judgment, a scepticism implicitly disavowed in the above passage, rest on misunderstanding of passages from the works of natural law theorists. On such misunderstandings, see Finnis 1980, 23–55; Soper 1992.

Again: How could such fundamental questions as “Should we have law at all?” be “given shape” by the positivist thesis that law’s existence and content depends only on social facts? Does not Green’s claim invert the reasonable order of inquiry and reflection? Basic human needs and circumstances powerfully suggest to people in virtually all times and places that they should make and uphold some norms of the kind we call law, norms which will depend directly and for the most part on social facts such as custom, authoritative rule-making, and adjudication. Legal philosophy retraces and clarifies, critically, that elemental practical reasoning, somewhat as Hart did in Hart 1961, where he constructs a descriptive-explanatory account of law (i.e., refines his and our concept or understanding of law) by explaining how rules differ from habits, how powers have different functions and social value from obligations and so are not aptly reducible to obligations (and so also why power-conferring rules are distinct from duty-imposing rules), and how “primary” rules for outlawing gross violence, theft and fraud need , by reason of their lack of certainty in content and application and their immobility, to be supplemented by “secondary” rules of recognition, adjudication and change, the remedial supplementation that shifts a society into the domain and rule of law and legal system. May not those elements in Hart’s book be taken as an instance of natural law legal theory done in a primarily descriptive (rather than primarily justificatory) mode, and with incomplete scrutiny of the resources of practical reason, resources being drawn upon by the whole explanatory general description of law? Does not Hart’s description, despite its incompleteness, work as well as it does precisely because it disinters some elementary justifications conceived and put to use by the people whose activities provide the material for the descriptions? Does he not share the deep methodology of Aristotle and the natural law tradition (Finnis 2003) in making his identification of what law is (of “the concept of law”) depend upon his account of why law is a reasonable response to common human needs?

Again, the question perhaps most central to a general theory of law, namely whether law can have a nature, and if so whether it is to be understood on the model of artefacts, or alternatively by study of concepts (“conceptual analysis”), seems to tackled with most explicitness and attention to different and related kinds of subject-matter by theorists working in the philosophical tradition that is or concerns the topic of this entry: Murphy 2015; Finnis 2020.

None of this is to say that a sound legal theory of the kind explained in this entry need be called “natural law theory.” Like all philosophy, it should be done by considering propositions, not labels.

6. Other elements of natural law theory

Intended to be part of a comprehensive theory of practical reasons that are fit to direct us to the common good of each of our communities and its members, any natural law theory of law brings to bear on law all the theses proposed and defended in natural law theory’s moral and political parts and in a sound understanding of the human makeup and of the lasting characteristics of our circumstances. So, besides the questions listed by Green as quoted in section 5 above, issues such as the following three (see others in Finnis 2002) are treated by natural law theory as integral to legal science, theory or philosophy.

Rules of law are propositions of practical reason, apt for being taken as directive in the deliberations of law’s individual subjects towards judgment, choice (decision), and action (including chosen forbearance). So a sound theory of law will have an integrated and critical understanding of the structure of chosen action, particularly of the relationships between the intending of ends, the adoption of means, the dual character of almost all ends as also means, and of almost all means as also ends, and the necessity and normal possibility of freely choosing between options which embody or promise benefits and disadvantages incommensurable (incompletely commensurable) (Finnis 1997) with the benefits and disadvantages of the alternative options. Such an understanding will clarify the often somewhat crude accounts given in criminal law dogmatics (case law and textbooks) of actus reus and mens rea , accounts which often fail to distinguish been action as a physically or conventionally demarcated chunk of behavior and action as the carrying out of the choice of an option, that is of a proposal shaped and thus given a privileged description in the deliberations of the acting subject. The difference between intended or chosen means (or ends) and foreseeable or even fully foreseen effects (“side-effects”), like the consequent difference between the moral and, presumptively, legal standards applicable respectively to intended and not-intended effects, is psychologically and morally real. But it is often distorted by a simplistic legal dogmatics too averse to the (very real) risk that defendants will prevaricate about what they had in mind. What counts, and can often be inferred despite prevarication, is the act-description under which the behavior chosen was attractive to the defendant in his or her actual deliberations (as distinct from rationalizing act-descriptions adopted to present that motivation in a better light).

The reality of intention in the distinct but related field of communication of meaning will also be explored and defended by a natural law theory of law. This does not involve an unqualified and simple originalism in constitutional interpretation, or a simple denial of the characteristic insistence of legal dogmatics that the intention of the parties to agreements or declarations is to be ascertained “objectively (not subjectively),” that is, by reference to what a reasonable observer would have taken the statement in issue to mean. For: such an observer (and thus the “objective” viewpoint) will presumptively have given primacy in this interpretation to what (as far as the observer can discern in the circumstances of the statement’s making [= utterance]) the statement’s author actually (“subjectively”) meant (= intended to express/state).

Criminal responsibility (guilt) is primarily for acts and consequences intended by the offender. Liability for negligence is relatively exceptional in modern criminal law, though the predominant form of liability in modern law of compensation (“civil law”). (The duties and standards of care used to attribute tortious/delictual/civil liability are in part straightforwardly moral and in part conventional—in neither part are they securely source-based in the sense of sources given unconditional primacy in legal positivism.)

The legal enunciation of rules of criminal law (mostly “prohibitions”) has as its primary goal the elimination or at least discouraging of the specified kinds of action (or omission). In this phase of the legal institution of criminal law and punishment, the goal can be called deterrence. The fact that this goal works partly by enforcement and application of the threatened sanction in the event of violation and conviction does not, however, entail that deterrence is the formative or even the primary end of punishment. Indeed, the institution of punishment has its primary sense and justification, not in deterrence, but in the restoration of that presumptively fair balance of burdens and advantages which offenders upset, precisely in choosing to prefer their own purposes and advantage to restraining their action so as to avoid violating the law. In preferring that self-preferential option, offenders help themselves to an advantage over all who do restrain themselves so as to respect the law. The offenders thereby upset the presumptively fair balance of advantages and burdens between themselves and the law-abiding. The primary purpose of punishment thus can reasonably be to restore that disturbed balance by depriving convicted offenders of their unfairly gained advantage—excess freedom of action—by imposing upon them measures, punishments, whose precise purpose is to restrict their freedom of action, whether by fines or imprisonment, proportionately to the degree to which they indulged their self-preference. Punishment in that way seeks to ensure that, over the span of time running from before the offence to the undergoing of the penalty, no one gains an advantage over fellow citizens by offending.

Thus, while compensation in civil law (tort, delict, etc.) rectifies the disturbed balance of advantages and burdens as between tortfeasors and their victims , punishment in criminal (penal) law rectifies the relationship between offenders and all the law-abiding members of the community. This retributive justification (general justifying aim) of punishment explains why mental competence and mens rea are standard legal pre-conditions of criminal guilt and liability to punishment. It is compatible with concurrent goals of deterrence, protection and reform, as bonus side-effects of the retributive sentence, and as organizing aims of specific measures and features e.g., of a prison regimen. It both presupposes and reinforces the reality that the political community in question stands to offenders and law-abiding alike as our community .

Examination of (i) how one legal system becomes independent of another by lawful processes and (ii) how parts of a legal system (e.g., its constitution, or its rules for identifying office-holders) are replaced by the unlawful processes of coup d’état or revolution demonstrates (see Raz 1979, 100–109) that the identity of a subsisting legal system as one and the same system of legal norms cannot be explained (or even coherently described) by an account which refers only to the norms and their inter-relationships as validating norms and validated norms. The non-momentary identity of a legal system is a function of the subsisting identity of the community whose legal system it is. Legal theory is sub-alternated to the historical understanding (including self-understanding) of a community and its members as being this community —paradigmatically, this nation-state—rather than some accidental sequence or agglomeration of persons and events, and this understanding must be in some substantial measure non-dependent upon the legal norms that the community may succeed in constituting for itself and its members. Doubtless the shared purpose of living together under a rule of law, and the shared memory of a shared acknowledgment or recognition of such laws as our laws, are normally important components of such a shared understanding of political-communal and legal identity. But other shared purposes, memories and dispositions to act must be also be substantially present, if the phenomena of lawful independence and revolutionary constitutional change are to be as they are.

The not uncritical realism of natural law theory, evidenced in its approach to the realities of intention as distinct from foresight and inattention, and of self-preferential choice and the differing relationships between (i) offender and law-abiding and (ii) tortfeasor and victim, similarly enables it to undertake a critical reflection, within legal theory broadly understood, on the kinds of community capable of sustaining and being ordered in part by a legal system.

• Alexy, Robert, 2002, The Argument from Injustice: A Reply to Legal Positivism , Oxford: Clarendon Press.
• –––, 2013, “Some Reflections on the Ideal Dimension of Law and on the Legal Philosophy of John Finnis”, American Journal of Jurisprudence , 58: 97.
• Bentham, Jeremy, 1776, A Fragment on Government , ed. J.H. Burns and H.L.A. Hart, London, Athlone Press, 1977.
• Brink, David, 1985, “Legal Positivism and Natural Law Reconsidered,” The Monist , 68: 364–387.
• Crowe, Jonathan, 2019, Natural Law and the Nature of Law , Cambridge & New York, Cambridge University Press.
• Dickson, Julie, 2001, Evaluation and Legal Theory , Hart Publishing.
• Dworkin, Ronald, 1978, Taking Rights Seriously , paperback ed., Cambridge, Mass.: Harvard University Press, 1977.
• Finnis, John, 1980, Natural Law and Natural Rights , Oxford: Clarendon Press; 2nd ed., with same pagination and a Postscript, 2011.
• –––, 1985, “On ‘Positivism’ and ‘Legal Rational Authority’”, Oxford Journal of Legal Studies , 5: 74–90.
• –––, 1997, “Commensuration and Public Reason,” in Chang, Ruth (ed.), Incommensurability, Comparability and Practical Reasoning , Cambridge, Mass.: Harvard University Press, 215–233, 285–289.
• –––, 2000, “The Priority of Persons,” in Horder, Jeremy (ed.), Oxford Essays in Jurisprudence, Fourth Series , Oxford: Clarendon Press, 1–15.
• –––, 2002, “Natural Law: The Classical Tradition,” in Coleman, Jules and Scott Shapiro, The Oxford Handbook of Jurisprudence and Philosophy of Law , Oxford & New York: Oxford University Press, 1–60.
• –––, 2003, “Law and What I Truly Should Decide,” American Journal of Jurisprudence , 48: 107–29.
• –––, 2013, “Reflections and Responses,”in Keown, John and Robert P. George, Reason, Morality and Law: the Philosophy of John Finnis , Oxford & New York: Oxford University Press, 459–84.
• –––, 2014, “Law as Fact and as Reason for Action: A Response to Robert Alexy on Law’s ‘Ideal Dimension’,” American Journal of Jurisprudence , 59: 85–109.
• –––, 2018, “Aquinas’ Moral, Political, and Legal Theory ” The Stanford Encyclopedia of Philosophy (Summer 2018 Edition) , Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/sum2018/entries/aquinas-moral-political/ >.
• –––, 2020, “The Nature of Law,” in J. Tasioulas (ed.), The Cambridge Companion to Philosophy of Law , Cambridge & New York: Cambridge University Press.
• Fuller, Lon, 1969, The Morality of Law , revised ed., New Haven & London, Yale University Press, 1965.
• Gardner, John, 2001, “Legal Positivism: 5 1/2 Myths,” American Journal of Jurisprudence , 46: 199–227; reprinted in Gardner 2012, 19–53.
• ––– 2012, Law as a Leap of Faith , Oxford: Clarendon Press.
• George, Robert, (ed.), 1992, Natural Law Theory: Contemporary Essays , Oxford: Clarendon Press.
• –––, (ed.), 1996, The Autonomy of Law: Essays on Legal Positivism , Oxford: Clarendon Press.
• –––, (ed.), 2003, Natural Law (The International Library of Essay in Law and Legal Theory, Second Series), Aldershot and Burlington: Dartmouth Publishing and Ashgate Publishing.
• –––, 1999, In Defense of Natural Law , Oxford: Oxford University Press.
• Green, Leslie, 2003, “Legal Positivism”, The Stanford Encyclopedia of Philosophy (Spring 2003 Edition) , Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/spr2003/entries/legal-positivism/ >.
• Green, Leslie, and Adams, Thomas, 2019, “Legal Positivism”, The Stanford Encyclopedia of Philosophy (Winter 2019 Edition) , Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/win2019/entries/legal-positivism/ >.
• Hart, H.L.A., 1961, The Concept of Law , Oxford: Clarendon Press.
• –––, 1994, The Concept of Law , 2 nd ed., Oxford: Clarendon Press.
• Kramer, Matthew, 2004a, “On the Moral Status of the Rule of Law,” Cambridge Law Journal , 63: 65.
• –––, 2004b, “The Big Bad Wolf: Legal Positivism and Its Detractors,” American Journal of Jurisprudence , 49: 1–10.
• Lewis, V. Bradley, 2006, “Plato’s Minos: The Political and Philosophical Context of the Problem of Natural Right”, Review of Metaphysics , 60: 17–53.
• Moore, Michael, 1992, “Law as a Functional Kind”, in George 1992.
• Murphy, Mark C., 2006, Natural Law in Jurisprudence & Politics , Cambridge: Cambridge University Press.
• –––, 2015, “Two Unhappy Dilemmas for Natural Law Jurisprudence”, American Journal of Jurisprudence , 60: 1–21.
• Orrego, Cristóbal, 2007, “Natural law under other names: de nominibus non est disputandum ”, American Journal of Jurisprudence , 52: 77–92.
• Raz, Joseph, 1980, The Concept of a Legal System: An Introduction to the Theory of Legal System , 2 nd ed., Oxford: Clarendon Press, 1970.
• –––, 1979, The Authority of Law , Oxford: Clarendon Press.
• –––, 1985, “Authority, Law and Morality,” Monist , 68: 295–324; also in Raz 1995, 210–237
• –––, 1986, The Morality of Freedom , Oxford: Clarendon Press.
• –––, 1995, Ethics in the Public Domain , Oxford: Clarendon Press.
• –––, 2009, Between Authority and Interpretation: On the Theory of Law & Practical Reason , Oxford: Oxford University Press.
• Simmonds, N.E., 2004, “Straightforwardly False: The Collapse of Kramer’s Positivism,” Cambridge Law Journal , 63: 98.
• –––, 2005, “Law as a Moral Idea,” University of Toronto Law Journal , 55: 61.
• –––, 2006, “Evil Contingencies and the Rule of Law,” American Journal of Jurisprudence , 51: 179–189
• –––, 2007, Law as a Moral Idea , Oxford: Oxford University Press.
• Soper, Philip, 1992, “Some Natural Misunderstandings about Natural Law,” Michigan Law Review , 90: 2393–2423.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

[Please contact the author with suggestions.]

Aquinas, Thomas: moral, political, and legal philosophy | Grotius, Hugo | nature of law: legal positivism | political philosophy: medieval | Suárez, Francisco

Copyright © 2020 by John Finnis < jfinnis @ nd . edu >

• Accessibility

Support SEP

Mirror sites.

View this site from another server:

• Info about mirror sites

The Stanford Encyclopedia of Philosophy is copyright © 2024 by The Metaphysics Research Lab , Department of Philosophy, Stanford University

Library of Congress Catalog Data: ISSN 1095-5054

• Bibliography
• More Referencing guides Blog Automated transliteration Relevant bibliographies by topics
• Automated transliteration
• Relevant bibliographies by topics
• Referencing guides