Version: v1, Published online: 1998
Retrieved October 23, 2020, from https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1
Law has been a significant topic for philosophical discussion since its beginnings. Attempts to discover the principles of cosmic order, and to discover or secure the principles of order in human communities, have been the wellsprings of inquiry into law. Such inquiry has probed the nature and being of law, and its virtues, whether those that it is considered as intrinsically possessing, or those that ought to be cultivated by lawgivers, judges or engaged citizens. A dialectic of reason and will is to be found in philosophical speculation about the underpinning principles of law. On the one side, there is the idea that the cosmos itself, and human society too, contain immanent principles of rational or reasonable order, and this order must be capable of discovery or apprehension by rational (or ‘reasonable’) beings. On the other side, there is the view that order, especially in society and in human conduct, is not found but made, not disclosed to reason but asserted by acts of will. Either there is a ‘law of reason – and nature’ or there is a ‘law by command of the sovereign – or of God’. A third possible element in the discussion may then enter, that of custom as the foundation of law.
Implicit in the opposition of reason and will is the question of practical reason: does reason have a truly practical role concerning ultimate ends and nonderivative principles of action, or is it only ancillary to pursuit of ends or fulfilment of norms set by will? Alternatively, does reason already presuppose custom and usage, and enter the lists only by way of critique of current custom and usage? In either case, what is at issue is the very existence of such a thing as ‘practical reason’ (see Practical reason and ethics). For law is about human practice, about societal order enforced and upheld. If there can be a law of reason, it must be that reason is a practical as well as a speculative faculty. The radically opposed alternative sets will above reason, will oriented to the ends human beings happen to have. Norms and normative order depend then on what is willed in the way of patterns for conduct; reason plays only an ancillary part in the adjustment of means to ends.
A further fundamental set of questions concerns the linkage of the legal with the political. If law concerns good order, and if politics aims at good order in a polity, law must be a crucial part of politics; but in this case a subordinate part, for politics determines law, but not law politics. On the other hand, politics may be considered at least as much a matter of actual power-structures as a matter of speculation about their beneficial use for some postulated common good. In the latter case, we may see law as that which can in principle set limits on and control abuses of power. Politics is about power, law about the shaping and the limiting of power-structures. The issue then is how to make law a master of politics rather than its servant.
Brown, Beverley and Neil MacCormick. Law, philosophy of, 1998, doi:10.4324/9780415249126-T001-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/overview/law-philosophy-of/v-1.
Copyright © 1998-2020 Routledge.