The Impossible in Political and Legal Philosophy

Abstract

POLITICAL PHILOSOPHY and philosophy of law have of late been treated as though they were two distinct fields of thought. But they cannot be so separated. As was quite correctly understood during the natural-law period, both deal with the same basic problem of what laws ought to govern a country. The law that is may properly constitute the primary subject of study in law schools and in legal theory. Yet to philosophy of law, exactly as to political philosophy, this law, as it is being handed down by constitutions, legislatures, courts and administrative agents, is only a matter of critique or justification. Whenever we ponder about justice in the transpositive sense of what ought to be law, we necessarily turn to the question of whether there are eternal, or absolute, or at least objective, standards of justice. Examinations of this kind cannot be separated into political and legal divisions. If there are such standards, they are relevant to both policy and law. If there are not, philosophy of law, as well as of policy, must still establish and defend this negative contention, and thereafter either resign-as seems to have been the case generally with Anglo-American philosophy of law--or investigate, in a relativistic way, the political purposes to which legislation ought or ought not to be made subservient. Thus both absolutists and in either branch of philosophy are bound to deal with legislation and political coercion. Absolutists have always done so quite elaborately. Whether building on revelation, intuition, reason, comparison or speculation, they have put forward dogmas on proper ends and means of legislation. Among relativists in legal