Soon I will be heading off to the conference on the nature of law to be held at McMaster University. For quite some time I have been rather skeptical of legal philosophers’ defining the jurisprudence as concerned first (and foremost?) with the search for the nature of law, and my contribution to the conference takes the same line, albeit perhaps more explicitly than in the past. The specific argument is different from my earlier efforts. I adopt a kind of “case study” approach, comparing the way the relationship between law and politics is understood in American and British (or English) law. I argue that it is understood very differently, and that the difference reflects a different fundamental understanding of the nature of law. The paper is now available on SSRN.
There is a broader point emerging from the paper: the need for legal philosophers to pay more attention to politics. Legal philosophers are obsessed with the question of the relationship between law and morality. In one way or another all the big debates of the last fifty years or so (positivism v. natural law; positivism v. Dworkin; inclusive positivism v. exclusive positivism; obligation to obey to the law yes or no) are offshoots of that question, and different thinkers’ views tend to be aligned along predictable lines: if you are a legal positivist it is not surprising you think there is no general obligation to obey the law; if you are a natural lawyer, it is not hard to see to discover that you believe the opposite.
What is interesting is that there is almost no work by legal philosophers on the connection between law and politics. (There is, of course, a lot by political scientists.) But I have come to think that the law-and-politics interface is much more important than the law-and-morality interface for the sort of questions that preoccupy legal philosophers. Admittedly, this impression may simply be the result of the fact that this issue is less explored, but be that as it may, more attention should be paid to this issue. One reason why it may have been less discussed is that it is potentially much more destructive for the “nature of law” enterprise than that of law-and-morality. Or at least this is at least this what I try to show in my paper.
The paper ends with a brief look to the future (and in a way to the past) of jurisprudence, a matter that I explore more fully in a different paper (still in the works), namely the disappearance of human nature from jurisprudence and its potential, and needed, return. A view of law as derived from some views on human nature has been central to the work of the classical natural lawyers but it is also an aspect of those thinkers often classified as early legal positivists, Hobbes and Bentham. For them an account of human nature was itself part of a broader metaphysical worldview. This perspective has largely disappeared from contemporary legal positivism, and it is this perspective that a more naturalistic jurisprudence could and should revive. More on this in the future.