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27 Ratio Juris 1 (2014)

handle is hein.journals/raju27 and id is 1 raw text is: Ratio Juris. Vol. 27 No. 1 March 2014 (1-20) Philosophy in Law? A Legal-Philosophical Inquiry MICHEL ROSENFELD Abstract. Going beyond the debate between positivists and proponents of natural law, there is a controversy over whether there can or ought to be philosophy in law (i.e., whether anything within the subject-matter of philosophy can also become part of the subject-matter of law). According to Luhmann's autopoietic theory, law is a normatively closed system and accordingly remains completely independent from philosophy. Dworkin, on the other hand, asserts that constitu- tional law depends for its coherence and integrity on being encompassed within a particular political philosophy. This essay approaches philosophy in law from a functional rather than a legitimating perspective, and concludes against both Luhmann and Dworkin that the integration of philosophy in law is interstitial and limited. The consequence of this for law's validity and legitimacy is a likely increase in contestation and contestability. The essay concludes that by embracing pluralism as a philosophy, one can reduce and better manage contestability without ever becoming able to eliminate it. 1. Introduction The question of whether there is philosophy in law-whether any part of what we take as being within the subject-matter of philosophy can also form part of the subject matter of law-is a difficult and contentious one. First of all, it is not obvious what the question itself means. One may think that the question is the one that figures at the base of the traditional debate between positivists and natural law proponents.' Or one may think that the question is whether certain legal issues are indistinguishable from certain corresponding philosophical ones, such that there is an overlap between law and philosophy. For example, what constitutes justice, equality and proportionality is a traditional philosophical question going at least as far back as Aristotle,2 but it is also a legal question in at least certain contexts, such Compare Hart 1961 (law, as such, is independent from morality) to Dworkin 1978 (law is inextricably linked to morality). In contemporary discussions, the debate between positivists and naturalists has become more nuanced and sophisticated, with positivists incorporating moral evaluations within descriptive theories of law and some naturalists claiming that morals should guide the best interpretation of law without necessarily being decisive in terms of legal validity. See Bix 2002, 96-8. 2 See Aristotle, The Nichomachean Ethics, Book V (Aristotle 2000). D 2014 The Author. Ratio Juris D 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.

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