II.A Map of Philosophy of Law and Legal Theory
The questions of legitimacy which legal philosophy and legal theory consider are part of, and are embedded in, a wider theoretical enterprise which contains at minimum the following elements:
1. DESCRIPTIVE AND ANALYTICAL THEORY
Legal philosophy provides a descriptive and analytical theory of concepts and phenomena of the law. It asks questions like what is a norm? What is the difference between a norm and, say, a habitual pattern of behaviour or the expectation that a certain course of events is going to take place? What is the formal structure of a fundamental right? What is the difference between such a right and an agent’s wish or interest, for example? The nature of an obligation – a concept that “haunts much legal thought”3 – is another question that legal philosophy has examined in great detail. This issue is vital because obligations are a core element of any legal system. Another pertinent issue is the meaning of the validity of a norm. What does it mean to assert that a norm is valid? Is it a matter of efficiency, of the (unbound) will of an authority, of the consent of the addressees of norms, or perhaps of some material standards of justice or other ethical principles? Validity is sometimes equated with the existence of a law. Validity is an existence condition of norms. What does this mean? In what sense does a norm exist when it is valid?
These questions are of great importance because they outline the basic architecture of normative systems, including legal systems. We can have no real understanding of legal systems without a clear sense of what concepts such as norm, fundamental rights, obligations, or validity mean.4
These concepts are also important in another respect. Today, one major political challenge is to develop a cross-cultural, perhaps even transcultural concept of normativity and the law. The world has become highly interdependent and, in various ways, its legal orders attempt to respond by establishing a legal framework that accommodates this need for international legal coordination. A very basic framework of this type is created through the Universal Declaration of Human Rights5 and other human rights documents that define the minimal mandatory standards for the treatment of human beings by public authorities and by other agents (individuals and other legal subjects like companies). It should be noted, however, that whether it is possible to make a human rights claim against companies is particularly contentious in its detail. This system of human rights has gained a very differentiated reality through public international law and regional organisations including the Council of Europe, the European Union, the Organisation of American States, or the African Union and their respective human rights law, all of which more or less satisfactorily complement the constitutional protection of basic rights.
But is this a feasible enterprise? One sometimes encounters the claim that cultures are so different that reaching any form of cross-cultural consensus about particular norms is unimaginable. After all, is it not true that globally, people are deeply divided over questions like the rights of women, the scope of religious freedom or the legitimate claims of people with different sexual orientations? Some even claim that certain cultures do not have certain concepts which are key elements of what is sometimes considered a “Western” conception of the law, e.g. the concept of fundamental rights. These claims are frequently spurious and based on a selective reconstruction of the fundamental features of the legal system under consideration. Nonetheless, if attempting to assess the merits of such claims, it is vital to have a clear sense of what one is talking about when one is referring to a concept like “fundamental rights”. Thus, conceptual clarity – descriptive and analytical precision – is a precondition for successfully meeting the many challenges that the divided modern world poses for ethics and law.
2. EXPLANATORY THEORIES
Another subject matter of the philosophy of law is that of explanatory theories. Explanatory theories formulate a hypothesis about the causal connection between something requiring explanation and a factor that serves as the explanation for the phenomenon under scrutiny. For example, explanatory theories of law maintain that law in its concrete form is an expression of the economic structure of society, of culture, of the functional necessities of legal social systems or even of the climate. These theories have sometimes become forces of world history: for example, the aforementioned theory developed by MARX connecting law and economics. This theory was an important element of the motivation and content of social revolutions, like the Russian Revolution which transformed important parts of the world last century. The particular stance of pre-Stalinist Marxism with its critique of law, state, and human rights cannot be understood without reference to this highly influential background theory.6 After all, the critique of the concepts like human or fundamental rights played a key role in the establishment of dictatorships that – a tragic irony – counted among their victims some prominent Marxist theoreticians of law,7 and led some important Marxist authors to embrace the idea of human rights.8
Such theories need to be scrutinised for scientific reasons and because of such sometimes far-reaching practical consequences. There must be scrutiny of whether they are actually defensible and their claims must be backed by evidence. Further, it must be considered whether there are preferable alternatives: for example, with regard to Marxism, perhaps a more differentiated theory of the relationship between the law and the economy, as proposed by MAX WEBER, including a variety of factors, not just the economy to explain the nature and development of the law.9
3. NORMATIVE THEORY
A third element of legal philosophy is normative theories. KANT famously formulated three questions that philosophy essentially aims to answer in his work the “Critique of Pure Reason”. These questions are: 1. what can we know? 2. what should we do? and 3. what can we hope for?10 Normative theory answers the second question: what are we supposed to do? This is a very important consideration because itis not only relevant for the agent herself but for others as well. What we decide to do affects others in direct or indirect ways. For example, when we decide that we have reached the limits of solidarity in the framework of the refugee crisis, this is not only a decision about our own life but about the lives of those arriving on Italian shores, boarding a rubber boat in Libya or stranded in a Pacific camp on the way to Australia. Therefore, the kind of answer we formulate to this question is a matter of real consequence.
In order for normative theory to proceed on this course, it must address matters of principle: it considers, for instance, what the content of justice is. Is it related to equality as major authors of the theory of justice, from ARISTOTLE to RAWLS, have argued? If so, in which sense? What does equality actually mean? Who or what is equal and in which respect? What behaviour does the idea of equality mandate?
Normative theory also enquires also into what we owe to each one another. Are there such duties of solidarity? If so, towards whom; to personal relations, to the members of a group one belongs to or to the group itself, to people whom we have formal legal ties with like shared citizenship, or to any human being? What is the content of such duties? Are they differentiated depending on the level of proximity of the agent towards the addressee? What are their limits, what is their minimal content? How are they embodied in the law?
Legal Philosophy asks questions about concrete institutions of the law. Some questions have already been mentioned above: it enquires into the nature, content, and justification of human rights. What are these rights? In what form do they exist? What are their foundations? Are they relative to different cultures or religions or are they of universal validity? What is the content of true human rights? Are current conceptions of human rights too expansive or too limited; if either, in which area?
The legitimacy of public authority – national, super-national, and international – is another pertinent topic of research by legal philosophers. The normative structure of the international order is of great importance. Are there reasons for robust national egoism or is it preferable to pursue a cooperative approach to international relations based on some kind of notion of international solidarity, mutual help, and respect? If the latter, then what are the proper institutions to pursue such aims? A World-State? A federation of nations? Networks operating beyond the state? What are the prospects of such enterprises? Is the hope of “perpetual peace”11 still alive or just the embarrassing dream of a bygone epoch?
An important part of the law is its regulation of relations between private parties. The theory of private law is consequently another leading topic of legal philosophy and legal theory. For example, one can ask questions about the foundations of the law of contract or tort in a legal system or about the content and limits of private autonomy as a guiding principle of liberal private law systems.
A theory of criminal law raises equally significant questions. Are there principled reasons behind the idea that sanctions should be based on concepts of guilt and responsibility? What purposes can criminal sanctions justifiably pursue: dissuading the criminal from reoffending, re-integration, retribution, general prevention or perhaps something else entirely? One may add additional concrete questions like whether the criminal law can justifiably aim for sanctions to have general preventive effects. Further, what are the limits of such sanctions: for example, does the concept of human dignity set any?
Normative theory can also address more concrete questions: e.g. is the ban of burqas in Europe legitimate, or is it a violation of the basic principles of a liberal order? What privacy rights are justified? Is it true that the modern digital society has fundamentally reshaped the concept of privacy or, to the contrary, should notions of human autonomy guide our approach to these far-reaching challenges created by digital technologies and their use that have been and still are constitutive of constitutional state?
4. THE RELATIONSHIP OF LAW AND MORALITY
Another classical problem of philosophical reflections about the law concerns the relationship between law and morality. The question is whether there is a necessary connection between the law and morality, as many theorists of law have claimed, even arguing that ultimately the law is a part of political morality: “lawyers and judges are working political philosophers of a democratic state”.12 Or are positivists correct in their persistent claim that the two realms are entirely separate?13
As a starting point, one should remember that the separation of law and morality is a basic element of modern law. Law regulates external behaviour and is enforced by sanctions; morality is a normative order that is subjectively experienced as mandatory by individuals themselves, and is effective only because of the power and influence moral obligations have on agents’ motivation.14 There is no good reason to abandon this basic distinction in current reflection.15
However, to underline the distinction between law and morality in this sense does not answer the question of whether material ethical principles are somehow relevant in determining the conditions of validity of law and the concrete content of legal norms, in circumstances where the opacity of legal texts necessitates interpretative choices. Even if such principles are relevant in this regard, this does not change the fact that the law thus identified and interpreted regulates external behaviour and does not necessarily demand to make a determination of an individual’s conscience. Further, it does not affect the fact that law is backed by external sanctions rather than by the subjective experience of the mandatory character of norms.
There is a very rich discussion about this matter: starting in antiquity, pursued in the natural law tradition and continued today. At least the two major areas just mentioned demand further reflection: the conditions of the validity of norms and the hermeneutics of law.
The problem of defining the conditions for the legitimacy of law raises the following question: is it possible to dissociate legal systems from extra-legal grounds of legitimacy? Can one make an argument for democracy, constitutionalism or human rights without referencing principles of justice or human respect? If this seems difficult to imagine, a first connection between law and morality is established.
Another area where questions about the connection between law and morality become pertinent is in the application of the law. Is it possible to apply the law without the influence of certain background theories, including ethical principles that guide the interpretation of law in concrete cases which require the making of interpretative choices? Can one concretise an abstract fundamental right, for instance freedom of religion in the case of the prohibition of burqas, without the influence of a background theory about the meaning of freedom, the kind of restrictions we can impose on others engaged in prima facie not harmful behaviour and the conditions under which this may be allowed? Such background theories cannot be fully determined by the text of the concrete norm to be interpreted, because these theories are the instrument used to concretise the open-textured wording of the norms; the wording that made it necessary to take recourse to them in the first place.
The identification of norms as valid law is another, related issue. Positivists maintain that law can be identified simply by reference to a certain social fact, some kind of rule of recognition, in a famous formulation;16 but is this really the case? Is it not true that for positivists the identification of positive law also depends on some kind of extra-legal background assumption; namely that those norms that have been enacted following a certain procedure for example acts of parliament (according to the rule of recognition) ought to be regarded as law? The alternative is to deprive any rule of recognition of its normative dimension and make it simply a description of the practice of judges, officials etc. that changes “as we go along”, in WITTGENSTEIN’S words.17
However, such an understanding clearly fails to capture the actual practice of law: judges in a democracy, for instance, regard it as a normative rule that one ought to take as law that which has been enacted in the proper way according to prescribed procedures and that which does not violate certain material standards like fundamental rights. The same is true for the constitution of a legal order itself: respecting the constitution is a mandatory rule, not a mere habitual disposition of judges and other officials. These are not banal findings; on the contrary, they are substantial assumptions about the reasons for regarding a norm as valid law. In the case of the constitution, it is clear that the obligation to treat it as law cannot be derived from the constitution itself; it must stem from other sources. In democratic states it is the idea of popular sovereignty that is the ultimate source of legitimacy and thus also of the obligation of judges and officials to treat the constitution as the highest law of the land. The question of the authority of the ultimate law giver is therefore the precise point where any merely positivist reconstruction of the identification of norms as valid law ceases to convince.18
Thus, there are very good reasons to think that the realms of law and morality are not entirely separate but instead interwoven in intricate ways. Such a finding does not mean that law is moralised in any objectionable way. The starting point for any interpretation is the positive law: this guides the legal understanding in the first place. Respecting positive law means respecting democracy, where the positive law is the outcome of democratic processes.
As indicated above, making the relationship between law and morality explicit does not turn law into morality, because the social institution of law is not transformed into individuals’ rules of conscience. The problem is rather how we are to determine why the positive law is valid, what the positive law actually says, and how we can decide what it means in difficult (or even sometimes in easy) cases without reference to such background assumptions regarding morality, for example in the case of current conundrums of religious freedom. To insist on the connection between law and morality thus does not lead to a suspect moralisation of law but to an area of crucial, critical transparency where influence that normative theory has on the law and its practice is not hidden but rather exposed.
A further important area of legal philosophy concerns the limits of legal insight and knowledge. The questions to be answered in this area are questions about the epistemology of ethics and law. Are we simply exchanging opinions when we argue about matters of justice? Is such argument just mutually shared information about preferences we are entertaining? What is the epistemic status of those propositions we make? Are they in one way or another comparable to insights in other domains of knowledge, for example, the natural sciences or logic? Or are they entirely different, perhaps due to their relativity to the tastes of a particular individual?
These questions are as difficult as they are important because, as indicated above, the law has far-reaching consequences for agents and other human beings who are affected by their actions. Therefore, the degree of certainty we can gain in this area of human thought is of great significance. We sometimes inflict great harm on individuals in the name of normative principles and the law, e.g. when we impose sanctions or, even more dramatically, when we engage in war. Surely such action can only be legitimate if we have firm epistemological reasons to assume that our judgment is not leading us entirely astray.
Whether there are reasons to have some kind of epistemological self-assurance must be examined in the context of some more concrete reflections below.
Another important question of legal philosophy is that of what exactly normative propositions refer to. Specifically, are normative propositions, e.g. those of the law, comparable to propositions like “in front of my window stands a tree”? Are normative propositions referring to entities that exist in the world in the same way that a tree does, or to something else entirely? Are they perhaps referring to nothing at all, instead simply being chimerical empty concepts without any real meaning, as important voices in the history of ideas have argued?19
These are very contentious questions concerning the stuff the world is made of. It is far from clear whether normative entities belong to the fabric of the world as many, since PLATO, have argued. The question remains unsettled today due to the arguments of a forceful stream of so-called moral realists who think that, in fact, moral entities are as real as any other entity of human experience.20 Others, in contrast, object to this kind of theory without necessarily denying the rationality of moral and other forms of normative argument.21
7. GROTIUS AND METHODOLOGICAL SECULARISM
HUGO GROTIUS, elaborating on a thought formulated in medieval philosophy before his time, famously argued that it is a useful exercise to think about the foundations of law as if God did not exist.22 This did not imply that GROTIUS did not believe in God. On the contrary, it simply meant that he wanted to explore whether religious premises are necessary in order to establish a convincing system of law. He came to the conclusion that this was not the case. In his opinion, a natural law theory could be developed on the basis of rational insight gained by the exercise of reason that would necessarily lead human beings to certain conclusions about the law. He tried to spell out in some detail what this could mean concretely in his account of the content of natural law, the same account that became a mile stone not only for public international law of the modern age but for other areas of the law as well – from the concept of rights to criminal law.
The project of an inner-worldly ethics and law as a hallmark of Enlightenment has been famously summarised by IMMANUEL KANT in the course of his philosophy of ethics and law: he stated that human reason needs no higher authority above it to determine the content of justified norms, and no other motivation than that derived from the command of ethical principles.23 This methodological secularism is very important for two reasons. The first reason is a pragmatic one: the methodological secularism perspective builds bridges across religious and other ideological divides. If it is possible to argue for certain normative principles without taking recourse to such contentious background theories, the prospects of reaching consensus across such divides are better. The second reason is a matter of theory. There are simply very good reasons to believe that in fact a justificatory theory of ethics and law can be outlined satisfactorily without recourse to religious foundations. The examples below will give some indications of how this aim may be reached.
8. THE QUESTION OF UNIVERSALISM
One important question is whether some normative propositions are universal.24 This is not to be misunderstood as a denial of the factual variety of ethical and legal principles. There is no question about it; ethical and legal systems vary in many respects. Rather, the question is whether there are reasons to believe that there are reflective principles that could command universal assent and that are in that sense universally valid, even though they may not be fully accepted everywhere today. Universalism should not be mistaken for the idea of normative convictions being factually uniform.
That there are no such universally justified normative propositions is, however, far from clear. A bedrock principle of modern legal orders is the equal worth of human beings. Certainly, there have been many systems of law – past and present – that have violated this principle. But are there any good reasons to justify such violations? Is there really an argument for the idea that humans in Cape Town are worth less than in Zurich? Is there an argument that the worth of women is justifiably less in Islamabad than in Paris? What reasons could justify the idea that skin colour is a relevant factor for the enjoyment of rights? It seems pretty difficult to formulate any kind of argument for such views denying human equality (widespread as they may be) that would stand even minimal scrutiny. The same holds true for many other such foundational normative principles - a state of affairs which widely opens the door for the idea of normative universalism.
Normative universalism is an epistemological point of view, not a political doctrine. It defends epistemic egalitarianism by underlining the fact that everyone has the potential for insight, whether this person is graduate of the University of Zurich or struggling to survive in a slum in Mumbai; of whatever skin colour, religious creed or gender. It takes a stance on the justification of basic normative principles and rights, not on the political means for developing a social order where such principles count. There is no individual or group that enjoys any prerogative in determining the content of universally justified norms. On the contrary, the elaboration of a universally justified set of norms is an open-ended process of committed critical thought in which nothing but arguments count, as is the case in any other serious intellectual enterprise of humanity. Consequently, to associate universalism with euro- or ethnocentrism or even cultural imperialism is way off the mark. To defend universalism is not to attempt to impose parochial norms on others: it is to defend the possibility of there being an understanding of basic norms of human civilisation open to all.
3H.L.A. HART, The Concept of Law, Oxford 1961, p. 85.
4See MATTHIAS MAHLMANN, Rechtsphilosophie und Rechtstheorie, 5th edition, Baden-Baden 2019, paragraph 26.
5UN General Assembly, Universal Declaration of Human Rights of 10 December 1948, 217 A (III).
6See e.g. KARL MARX/FRIEDRICH ENGELS, The German Ideology, in Marx/Engels Collected Works, Vol. V, New York 1976, pp. 46, 315 (German source: KARL MARX, Die deutsche Ideologie, Marx-Engels-Werke, Band 3, Berlin 1969, S. 63, 311); KARL MARX/FRIEDRICH ENGELS, The Manifesto of the Communist Party, in Marx/Engels Collected Works, Vol. VI, New York 1976, pp. 477 (German source: KARL MARX/FRIEDRICH ENGELS, Manifest der Kommunistischen Partei, Marx-Engels-Werke, Band 4, Berlin 1959, S. 464).
7E.g. EVGENY PASHUKANIS, author of a classical treatise of Marxism and the law, General Theory of Law and Marxism, 1924, in Selected Writings on Marxism and Law, Piers Beirne/Robert Sharlet (eds.), translated by Peter B. Maggs, London/New York 1980.
8The most interesting is ERNST BLOCH, Natural Law and Human dignity, translated by Dennis J. Schmidt, Cambridge 1986 (German source: ERNST BLOCH, Naturrecht und menschliche Würde, Berlin 1985).
9MAX WEBER, Economy and Society, edited by Guenther Roth/Claus Wittich, Berkeley/Los Angeles/London 2013 (1972), pp. 311 (German Source: MAX WEBER, Wirtschaft und Gesellschaft, 5. Auflage, Tübingen 1972, S. 181 ff.).
10IMMANUEL KANT, Critique of Pure Reason, in Immanuel Kant, Practical Philosophy, The Cambridge Edition of the Works of Immanuel Kant, translated and edited by Paul Guyer/Allen W. Wood, Cambridge 1999, pp. 677 (German source: IMMANUEL KANT, Kritik der reinen Vernunft, Akademie Ausgabe, Band III, 2. Auflage 1787, Berlin 1911, S. 833).
11IMMANUEL KANT, Toward Perpetual Peace, in Immanuel Kant, Practical Philosophy, The Cambridge Edition of the Works of Immanuel Kant, translated and edited by Mary J. Gregor, Cambridge 2008, pp. 311 (German source: IMMANUEL KANT, Zum Ewigen Frieden, 1795, Akademie Ausgabe, Band VIII, Berlin 1923, S. 341 ff.).
12For a recent example see RONALD DWORKIN, Justice for Hedgehogs, Cambridge/London 2011, p. 414.
13See e.g. HANS KELSEN, Pure Theory of Law, translated by Max Knight, Berkeley/Los Angeles 1967 (German Source: HANS KELSEN, Reine Rechtslehre, 2. Auflage, Wien 1960); HART; JOSEPH RAZ, The Authority of Law, 2nd edition, Oxford 2009.
14The most influential statement of the relation stems from IMMANUEL KANT, The Metaphysics of Morals, in in Immanuel Kant, Practical Philosophy, The Cambridge Edition of the Works of Immanuel Kant, translated and edited by Mary J. Gregor, Cambridge 2008 (cit. KANT, Metaphysics of Morals), pp. 353 (German source: IMMANUEL KANT, Die Metaphysik der Sitten, 1797, Akademie Ausgabe, Band VI, Berlin 1914, S. 230 ff.). For a recent restatement of these thoughts see JÜRGEN HABERMAS, Between Facts and Norms, translated by William Rehg, Cambridge 1996 (German source: JÜRGEN HABERMAS, Faktizität und Geltung, Berlin 1992, S. 143 ff.).
15See MATTHIAS MAHLMANN, Elemente einer ethischen Grundrechtstheorie, Baden-Baden 2008, pp. 27.
16HART, pp. 97.
17LUDWIG WITTGENSTEIN, Philosophische Untersuchungen, n. 83, in Ludwig Wittgenstein, Tractatus logico-philosophicus, 1984, translation Wittgenstein, Philosophical Investigations, 4th edition, P. M. S. Hacker/Joachim Schulte (eds.), Oxford 2009, n. 83.
18This is not a new observation, see e.g. KANT, Metaphysics of Morals, pp. 353.
19See e.g. RUDOLF CARNAP, The Elimination of Metaphysics through the Logical Analysis of Language, translated by Arthur Pap, in Alfred Jules Ayer (ed.), Logical Positivism, Glencoe 1959, pp. 60 (German Source: RUDOLF CARNAP, Die Überwindung der Metaphysik durch logische Analyse der Sprache, 1932, S. 219 ff.).
20See e.g. DAVID ENOCH, Taking Morality Seriously, A Defense of Robust Realism, Oxford 2011.
21See e.g. THOMAS SCANLON, Being realistic about reasons, Oxford 2014. On this matter, MATTHIAS MAHLMANN, Mind and Rights, in Mortimer Sellers (ed.), Law, Reason, and Emotion, Cambridge 2017 (cit. MAHLMANN, Mind and Rights), pp. 80, available at www.ssrn.com (https://perma.cc/ZZD3-FKYT).
22Hugo Grotius, De Iure Belli ac Pacis Libri Tres, Vol. I, reproduction of the edition of 1646 by James Brown Scott, Washington 1913, paragraph 11.
23IMMANUEL KANT, Religion within the Bounds of Bare Reason, in: Religion and Rational Theolorgy, edited by Allen Wood/George di Giovanni, Cambridge 1998, p. 57 (German source: IMMANUEL KANT, Die Religion innerhalb der Grenzen der blossen Vernunft, 1793, Akademie Ausgabe, Band VI, Berlin 1914, S. 3).
24On this matter see MATTHIAS MAHLMANN, Universalism, in Max Planck Encyclopaedia of Comparative Constitutional Law, Oxford 2017, available at www.oxcon.ouplaw.com (https://perma.cc/8VT3–8V86).