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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