Criticisms of Legal Philosophy
A second seemingly undisputed way of evaluating legal theory is that one cannot begin to develop a legal theory without determining which of its central characteristics should be taken into account (Dickson 2001, 38-45). John Finnis, for example, argues that one cannot engage in a first-rate legal theory without taking a stand, which are the important features of law that appropriate theories must explain (e.g., the law`s claim to authority). However, this seems to require evaluation (Finnis 1980, 9-15). As a result, Dworkin rejects not only the positivism thesis on social facts, but also what he considers to be the underlying assumptions about legal theory. Hart distinguishes two points of view from which a number of legal practices can be understood. A legal practice can be understood from the “internal” point of view of the person who accepts that practice as a legitimate guide to the conduct, as well as from the “external” point of view of the observer who wants to understand the practice but does not accept it as authoritative or legitimate. My goal in this article is to argue for the strictly philosophical nature of our discipline, the philosophy of law. I first take an earlier position on the question of what philosophy is in general, and I describe some premises for defining philosophical rationality. This then leads me to critically examine Bobbio`s dichotomy between the legal philosophy of lawyers and the philosophy of law of philosophers. It is important to reformulate the relationship between the philosophy of law as a “special” or “regional” discipline as opposed to the “general” philosophy. Third, I examine this problem by distinguishing between legal concepts and ideas in law.
Fourth, I defend the thesis that, in determining the type of philosophy that is the philosophy of law, the decisive factor is not so much (or not only) the relationship between the philosophy of law and philosophy in general, but, more importantly, the relationship between it and the law itself. I argue that the very nature of law inevitably and inevitably associates its practice with philosophical ideas and conceptions. This practical view of law is closely related to the vision of the philosophy of law as a practical philosophy, and this is the main thesis that I will defend here. Various expressions of this practical conception of law can be found in eminent contemporary authors who go beyond the dichotomy of legal positivism-natural law (such as Nino, Alexy, Dworkin, Atienza). The essential characteristic that, in my opinion, links the philosophy of law to the condition of a “practical philosophy” is the role played by the concept of value, that is, the centrality and primacy of its evaluative dimension. In addition to this particular controversy, there is another question about the relative importance of sanctions for the law`s ability to perform its social functions. Hans Kelsen, for example, argued that the monopolization of violence in society and the ability of the law to enforce its demands by violent means is the most important function of law in society. Twentieth-century right-wing positivists, such as H.L.A.
Hart and Joseph Raz, deny this, arguing that the coercive aspect of the law is far more marginal than their predecessors thought. Again, the controversy here is actually twofold: is coercion essential to what the law does? And even if it is not considered essential, how important is it in relation to the other functions that the law fulfills in our lives? Although this task is generally interpreted as an attempt to analyze the concepts of law and the legal system, there is some confusion as to the value and character of conceptual analysis in the philosophy of law. As Brian Leiter (1998) points out, the philosophy of law is one of the few philosophical disciplines that considers conceptual analysis to be its main concern; Most other areas of philosophy have taken a naturalistic turn and integrated the tools and methods of science. To illustrate the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that conceptual claims can serve: Dworkin`s legal theory shares some ideas with the inclusive version of legal positivism. Note, however, that while Dworkin and integrative legal positivists share the view that morality and legal validity are closely related, they differ because of this relationship. Dworkin argues that the reliance on legal validity on moral considerations is an essential feature of the law, which results from the profoundly interpretative nature of the law. Inclusive positivism, on the other hand, claims that such recourse to legal validity on moral considerations is a contingency; it does not arise from the nature of the law or from the legal reasoning as such. Inclusive positivists accept the social thesis; They argue that moral considerations affect legal validity only in cases where this is dictated by the social rules or conventions that prevail in a particular legal system.
The relevance of morality in a given legal system is determined by the contingent content of that company`s conventions. Contrary to these two views, traditional or, as it is now called, exclusive legal positivism claims that the legal validity of a norm never depends on its moral content. From this point of view, legal validity depends entirely on the conventionally recognized factual sources of law.