PHILOSOPHICAL ASSUMPTIONS IN LEGAL PHILOSOPHY (original) (raw)

In this article, I argue that the debate between contemporary legal positivism and contemporary natural law philosophy must be understood in terms of underlying assumptions about the nature of philosophy. Despite differing conclusions about the nature of law and legal theory, contemporary legal theorists generally approach the study of law in a similar way. Generally speaking, contemporary legal theorists attempt to provide general accounts of law which are theoretically valuable. They believe that a general and theoretically valuable account of law can be achieved by bracketing-off metaphysical questions and focusing on the analysis of concepts. However, it is ultimately because contemporary legal theorists share assumptions about the nature of philosophy that they share similar problems. Because of these share assumptions, contemporary philosophers of law must choose between two alternatives which have limited theoretical value, namely, an overly formal account of law or a relativistic account of law. Thus, this article is not only a critique of specific contemporary legal theories (those of Dworkin, Hart, Raz and Finnis), but also a more general critique of contemporary legal philosophy as a whole. Only by challenging the basic assumptions which underlie contemporary legal philosophy can we hope to provide accounts of law which are both general and theoretically valuable. INTRODUCTION The traditional debate between natural law and legal positivism is relatively easy to understand. It is easy to understand because the contrast between the two sides was sharp. Traditional natural law philosophers were Thomists in the full sense of the word. They accepted not only Aquinas' position on natural law, but also the metaphysics and epistemology which, they thought, were presupposed in his account of law. Traditional legal positivists were followers of Bentham, and they accepted not just his proposal for the separation of law and morality, but also his reasons for this separation. Traditional legal positivists shared Bentham's distaste for metaphysics and for the pretentions of an ethics grounded in metaphysics and religion. So, the traditional debate between natural law philosophers and legal positivists was a more fundamental debate about the nature of morality and the place of metaphysics in philosophy of law.