David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Jurisprudence 1 (1):39-61 (2010)
As their title suggests, "legal philosophers" are more philosophers than lawyers; they are in the business of thinking generally about law rather than doing law in any practical way. While lawyers tend to be jurisdiction-specific in their affiliations and competence, legal philosophers are under no such restriction. At their most ambitious, legal philosophers claim dominion over a jurisprudential realm that is delineated by neither geography nor history. Indeed, presenting themselves as intellectual citizens of the whole legal world, their crafted contributions are not intended to be judged by the contingent standards of local usefulness, but by the pure canons of universal validity. As such, the professional commitment and authority of legal philosophers is based upon their capacity to deal with parochial matters of law, but in a way that rises above and is not reducible to their local circumstances. Accordingly, while these legal philosophers might talk about morality and politics as they relate to law, they do so only in the most theoretical and abstract terms. For them, philosophy inhabits the realm of "truth and necessity" in which the contingent and the local holds little or no analytical sway. The contemporary champion of legal philosophy is undoubtedly Joseph Raz. His extensive and sophisticated work represents the high-water mark of analytical jurisprudence. With the recent publication of Between Authority and Interpretation, he has provided an accessible and stylish showcase of his philosophical theory of law that is as rigorous and demanding as it is provocative and controversial. Because this book builds on as it clarifies and develops the main themes of his work over the past four decades, it offers itself as a convenient focus for a more general assessment of Raz's whole oeuvre. In traversing law's terrain, he is adamant that, whatever the purposes and methods of other disciplines (e.g., sociology, history, anthropology, etc.), any philosophical analysis worth its name must concern itself with delivering insights and understanding about law that are of universal significance. While general conclusions about local laws and systems are important and helpful, they will have no philosophical value unless they can say something general and enduring about law as an institutional phenomenon. A corollary of this is that legal philosophy must insulate itself from contingent moral and political influences that will compromise or contaminate its project of making statements about law?s nature and operation that are not only universally valid, but also locally accurate. In this essay I challenge Raz's philosophical ambitions - and, therefore, much contemporary work in legal philosophy - by concentrating on his crucial methodological distinction between the local and contingent and the universal and necessary. It is my contention that, as there are no places where "moral and political desirability" do not play a role, "necessity" has no reign. Accordingly, I argue that legal philosophy cannot live up to its own methodological expectations and standards of validation. For all its impressive erudition and sophistication, therefore, Raz?s work is a manifesto of "local enthusiasms" that, while instructive and useful in themselves, can lay no claim to reveal the necessary features of law's existence. His work comprises some very contingent and localised generalisations that no amount of philosophical razzle-dazzle can elevate to universal and global truths about law. Blinded by the philosophical light, there is more formal brilliance than substantive bottom-line to Raz's jurisprudence
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