PHILOSOPHICAL ASSUMPTIONS IN LEGAL PHILOSOPHY

Abstract

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.