The dispute between Legal Positivists (eg, Hart) and Natural Lawyers (e.g., Finnis) concerns the existence or otherwise of a necessary (conceptual) connection between law and morality. Legal Positivists such as Hart deny this connection and assert the merely contingent relationship of law and morals. However, it can be demonstrated that implicit in the valid sociological method of concept formation of post‐Austinian Positivists are interpretative or ideal‐typical models of the practical rationality of the legal enterprise which are not, and cannot possibly (...) be, value‐neutral. With particular attention to the work of John Finnis and his incorporation of Weberian and Aristotelian methodological principles, this paper exposes, if not the truth of Natural Law Theory, the impossibility of Legal Positivism. (shrink)

Since Herbert Hart’s “fresh start” encouraged us to interpret legal and political phenomena from an “internal point of view,” and Lon Fuller pointed out the severe constraints upon a conceptually viable construction of this view, jurisprudence has had little choice but to become, methodologically speaking, genuinely and critically sociological. By this, we mean that in breaking with the common-sensical half-truths which produced the imperative or command theory of law, the conceptual problem of modelling the practical rationale of the legal enterprise (...) for the purposes of a general description of the phenomenon as subject matter, has become central and acute. In the past 20 years or so, the sociological awareness of the need to transcend the flux of empirical subjectivity, as well as important recent reinterpretations of the tradition of Natural Law, does seem to put jurisprudence within striking distance of achieving a mature status of integration with the methodology of the social sciences; not merely as some adjunct to, or opportunity for, empirically oriented “social studies,” but, as the source of a genuine epistemological synthesis in the approach to the problem of conceptualising the very subject matter of social science, namely, social action at the institutional level. In terms of concept formation this has gone some way towards the rehabilitation of the idea of “essential” or “focal” viewpoints in contrast to the enthusiasm for the contingencies and relativity of historical, linguistic and cultural conventionalisms. (shrink)

The philosophical concept of the self has had a hard time for a long time. The scepticism that lay behind Hume’s ‘bundle’ theory has been made manifest in ‘post-philosophical’ claims that the self or subject is not so much a ‘something’ that ties together a bundle of sense impressions, but is rather to be seen as an effect of a system of power relations, or an illusory presupposition of the relational properties of syntax.

The fundamental impulse of Discourse Theory is to eschew the moral substantivism of ethical rationalism in favour of a pragmatic, procedural approach to ethical and legal analysis. However, this paper argues that even if the analysis of Communicative Action as reconstructed by Habermas’s “Universal Pragmatics,” and the implied procedural rules of practical discourse advanced by Robert Alexy are accepted, the validation or “redemption” of all authoritative and distributive claims must, in terms of logical priority, encounter the substantively general necessity of (...) Gewirth’s Principle of Generic Consistency. This result operates as a reductio ad absurdum of the project of Universal Pragmatics and prompts us to reconsider the epistemological status and the political and ethico-legal function of Discourse Ethics in Civil Society. (shrink)

Kenneth Westphal provides here a masterful evolutionary account of Normative Constructivism in its classical development, which encompasses Hobbes, Hume, Kant and Rousseau, and culminates in Hegel’s vision of Sittlichkeit. In the process of endorsing the comprehensive moral anthropology of the latter, Westphal rejects the essentialist/objectivist rhetoric of Plato’s Euthyphro and invokes Hume’s alternative to Moral Realism, which is articulated in the view that what might appear “artificial” and “conventional” in our understanding of the rules (norms) of Justice does not necessarily (...) imply that these rules are thus arbitrary. Westphal advocates a metaphysically agnostic Normative Constructivism, which separates our claims to what, on the one hand, is deemed to be morally factual, and on the other, is simply morally relevant. Whilst I acknowledge that this separation of claims is not only possible, but necessary, I argue that it is not, in any critically viable sense, consistent with the rejection of moral objectivism. (shrink)

Kenneth Westphal provides here a masterful evolutionary account of Normative Constructivism in its classical development, which encompasses Hobbes, Hume, Kant and Rousseau, and culminates in Hegel’s vision of Sittlichkeit. In the process of endorsing the comprehensive moral anthropology of the latter, Westphal rejects the essentialist/objectivist rhetoric of Plato’s Euthyphro and invokes Hume’s alternative to Moral Realism, which is articulated in the view that what might appear “artificial” and “conventional” in our understanding of the rules of Justice does not necessarily imply (...) that these rules are thus arbitrary. Westphal advocates a metaphysically agnostic Normative Constructivism, which separates our claims to what, on the one hand, is deemed to be morally factual, and on the other, is simply morally relevant. Whilst I acknowledge that this separation of claims is not only possible, but necessary, I argue that it is not, in any critically viable sense, consistent with the rejection of moral objectivism. (shrink)

The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self-supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, (...) but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject. (shrink)