I.The Problems of the Philosophy of Law and Legal Theory
A good starting point for reflecting on legal philosophy and legal theory and its purpose, content, and profound significance in any given legal culture is the following observation: law is a mandatory normative order. It is enforced, ultimately, by the threat and application of physical force. Coercive force may be executed by public authorities in a variety of ways – for example by police agents or, in extreme cases, even military operations to defend certain principles of international law. This characteristic of the law raises a crucial issue: how do we know that the law being enforced is, in fact, legitimate? What are the criteria for well-justified law?
These are vitally important questions because the mandatory character of law seems to necessarily imply that the law enforced has a real claim to legitimacy. To enforce and maintain a normative order with physical force without such a claim is an indefensible enterprise.
Thus, it is important that we endeavour to find answers to questions of legitimacy, although this is certainly no easy task. Examples of such questions can be found in various areas of the law. For instance, constitutional states based on fundamental rights are facing new threats posed by international terrorism. Is it legitimate to increasingly curtail fundamental rights because of security concerns? If so – what is the line that should not be crossed? Is there such a line at all?
It has recently been proposed that the international order should be based on the narrow self-interest of nations, pursued with their respective power. Is that the proper guiding principle for the international community or, on the contrary, will this be the highroad to its destruction?
What about the refugee crisis? Are states’ national laws well-justified in this area? Does this body of law properly reflect the moral obligations affluent states and citizens of the Global North have towards the people seeking shelter and a better life? Or are these laws too generous? What about international refugee law: do its principles rest on solid grounds? An example to consider is the principle of non-refoulement, a ius cogens norm that prevents a country from returning asylum seekers to a country in which they would face the likely danger of persecution based on race, religion, nationality, membership of a particular social group or political opinion. Is it justified?
Such questions can be supplemented by traditional problems of legal reflection like: what are the foundations of public authority, of states in particular? How do we sketch the contours of a justified order of relations between private parties? What are the bases of guilt, responsibility, and punishment? Are human rights universally justified?
These kinds of questions lead to important problems of justice, freedom, dignity and solidarity and, importantly, such concepts’ often contentious concrete meaning. To attempt to answer such questions consistently and coherently with reasons understandable to all is the core task of legal theory and legal philosophy.
The following remarks will outline, first, some central topics of legal theory and legal philosophy to roughly map the contours of the field (II.). They will then explain why spending some time with the questions of legal theory and legal philosophy is not an exotic occupation. On the contrary, serious, committed work with the law is hard to imagine without a substantial reflection about its nature, structure and legitimate content (III.). The attention will turn then to two paradigmatic questions in more detail to illustrate the discourse and some findings of current reflections about justice (IV. and V.) and human rights (VI. and VII.).
A note on terminology: Sometimes legal theory is understood as a predominantly analytic enterprise whereas legal philosophy deals with normative questions. The international discourse on these topics, however, mostly uses these terms interchangeably. These remarks will follow this latter example.
1DONALD TRUMP, Remarks to the 72nd Session of the United Nations General Assembly, 19 September 2017.
2See Article 33 of the Convention and Protocol relating to the Status of Refugees, 1951 (Geneva Convention).