Philosophy of Law

Author(s): WILLIAM LEON McBRIDE

Source: Social Research, Vol. 47, No. 4, Philosophy: An Assessment (WINTER 1980), pp. 775-
788
Published by: The Johns Hopkins University Press
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Philosophy of Law
BY WILLIAM
LEON McBRIDE

LJ nuke many other areas of academic philosoph

philosophy of law has been, in terms of course offe
something of a "growth industry" in recent years in th
States. The basic reason for this is obvious: as underg
higher education has generally succumbed to press
emphasize career training at the expense of the trad
purer humanities and science studies, courses in jurisp
have become more attractive both to students and to
philosophy professors. Increasing numbers of the former, in-
cluding some who in eras when prospects were less gr
would have sought academic jobs, find law an appealing pr
fession, tinged with a somewhat more humanistic aura tha
most of the alternatives; and courses in the philosophy of law
can readily be counted as "preprofessional." Correspondingl
for a philosophy department to offer a course in this area - a
distinguished, let us say, from a course in metaphysics - is
win unwonted administrative kudos for performing a genuin
"service" in the currently approved fashion.
A few other now-standard types of philosophy courses, such
as business ethics and biomedicai ethics, have also acquired
both popularity and, as a result, conventional legitimacy in th
past decade. However, the philosophy of law stands in contras
to these by virtue of having an older and more clearly di
cernible heritage. Such figures as Kant, Savigny, and Joh
Austin wrote works that are clearly identifiable as treatises in
the philosophy of law well over a century ago. It would b
reasonable to expect, therefore, that naming the principa
research trends in contemporary legal philosophy - three
four principal schools or movements, a few leading figure

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 776 SOCIAL RESEARCH

etc. - would, particularly in view

teaching of the subject, be an easy
abundance of generally agreed-

Peculiar Problems

In order to explain some of the peculiar problems involved

in assessing the current state of the philosophy of law, I shall
need to cite several disparate factors. First, this area is par-
ticularly difficult to surround with clear perimeters, because so
many of its most important issues can equally well be regarded
as issues of public affairs or of ethics. For instance, John
Rawls's A Theory of Justice1 has attracted critical commentaries
in numbers that are virtually unprecedented for a scholarly
work which was first published less than a decade ago.
Teaching and research in the philosophy of law frequently
deal with it. But in how strict a sense can this mammoth book
be regarded as a work in legal philosophy? Not very strict, by
most criteria. Very few of the most widely recognized works in
classical or contemporary jurisprudence are even once cited in
it, and yet Rawls is by no means parsimonious in citing from
other writers generally. On the other hand, law and justice
have always been very closely linked conceptually. Rawls's
theory concerns an alleged ideal justice of social institutions
and hence contains abundant implications for specifying "cor-
rect" legal principles, if not actual rules. In an important
sense, then, philosophers of law have good reason to claim
Rawls as one of their own, even though he may never refer to
a single legal precedent.
Mention of principles and rules conjures up the name of
Ronald Dworkin; his work well illustrates two additional fac-
tors productive of difficulty when one is assessing the current
state of the art. Dworkin, an American law professor who
succeeded H. L. A. Hart as Regius Professor of Jurisprudence
1 John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971).

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 PHILOSOPHY OF LAW 777

at Oxford, and whose earliest tech

notoriety consisted primarily in a
theoretical model of law as the com
secondary rules"2 was inadequate
element of legal principles, not re
judges refer in making decisions,
qualifies as a contemporary philoso
Dworkin frequently focuses his work
cases, such as the De Funis and Bak
pejoratively called "reverse discrimin
of his evidence for the centrality
and, indeed, many other philosoph
regard as their focal theme of late -
tice, broadly interpreted, rather t
about moral ideals. What two difficu
work, as epitomized in his collectio
Seriously,* be thought to illustrate?
Like so much contemporary philos
is studied and taught in the Uni
Dworkin's work is characterized b
sophical perspective and an Anglo-
legal perspective. As for the first, D
extreme example, among his peers
who exhibits little public interest
done in the broadly analytic tradit
his methodological techniques or in
legal philosophy itself, apart from t
Bentham, and John Stuart Mill. (In o
has only to compare the footnotes in
their abundant allusions to Wittge
temological literature of the period
positivist tradition of Scandinavian

2 H.L.A. Hart, The Concept of Law (Oxford: Cl

3 Ronald Dworkin, Taking Rights Seriously (Cam
1977).

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 778 SOCIAL RESEARCH

the rare annotation of Taking Righ

should respect differences in ph
member that some of Western p
and original figures exhibited eve
kin does to situate their own thou
temporaries and predecessors. Ho
which Dworkin does undertake such
to me to exemplify an even mor
deplorable tendency in contempor
law, namely, to regard as fundamen
or another version of utilitarianism, on the one hand, and
some ("deontological") theory of absolute values, on the other.
Both Dworkin, who sees his own approach as supplementing
Rawls's at a deeper level,5 and Rawls himself adopt this pre-
supposition. Thus the more radical critiques of traditional
ways of conceiving of justice, rights, and other values that we
find, for instance, in Nietzsche, in Marxism, and even in
Kelsen's positivism are not taken at all seriously in most con-
temporary American legal philosophy; this situation is not to
its credit.

There is, clearly, a close connection between this problem of

philosophical narrowness and the other main difficulty that I
have cited as endemic to the philosophy of law, at least as it
has developed in the United States and England. When re-
search in this field draws extensively, as Dworkin's does, on
actual legal practices - rules, cases, judges' ways of making
decisions, etc. - researchers tend to use material that is close to
home: American and British legal developments, particularly
decisions of the U.S. Supreme Court and of the House of
Lords. The fact that, although the constitutional structures at

4 One might also compare a very recent text, Thomas Morawetz, The Philosophy of
Law (New York: Macmillan, 1980), with Dworkin's writings in this regard. Based on a
lecture course and designed, among other things, to defend a certain utilitarian
approach to law against Dworkin's criticisms, Morawetz's book is clearly intended to be
more derivative, less original, than Dworkin's; yet the scope of its philosophical
culture is far broader.
5 Dworkin, Taking Rights Seriously, pp. 150-183.

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 PHILOSOPHY OF LAW 779

the highest level are interestingly dif

of the two countries' systems are
temptation to restrict the empirical
the legal practices that take place wi
aries (with, occasionally, the addition of Australia and
English-speaking Canada, where the philosophy of law also
flourishes, but where most legal practice remains thoroughly
within the Anglo-Saxon tradition6). The result is that whatever
claims our mainstream legal philosophers make to general or
universal validity must appear somewhat weaker in Code Law
countries, to say nothing of areas of the world with even more
diverse legal traditions. In actual fact, the situation may not be
quite so dire as it sounds, since legal practices and issues in,
for example, the Federal Republic of Germany today are in
many respects more similar to British and American practices
than an insistence on trite and highly misleading slogans about
presumption of innocence versus presumption of guilt, re-
liance on precedent versus reliance on code, etc., would make
it appear.7 Nevertheless, this "Anglo-American provincialism
in legal perspective," as I termed it earlier, remains a serious
drawback.

6 A good, typical illustration of the easy assimilability of Canadian to British and

American legal philosophies is a recent anthology, Philosophical Law, edited by Richard
Bronaugh (Westport and London: Greenwood Press, 1978). The essays, presented at
a colloquium at the University of Western Ontario by a distinguished collection of
British, Canadian, and American philosophers and lawyers - a number of them,
including Ronald Dworkin, "transplants" from one country to another, at home in all
three- show the great common ground upon which theorists from all three nations
can base their claims when debating, for instance, the merits and problems of the
adversary system. Martin Golding, one of the best contemporary American philoso-
phers of law, at least points to the possibility of a different system, one of "judicial
prosecution," on p. 105 of his contribution to this volume.
7 An excellent authority on this point is my friend Martin Kriele, who has studied
law in the United States and both teaches and, as a lawyer and a member of the
Verfassungsgerichtshof (Constitutional Court) of North Rhine- Westphalia, practices it
in West Germany. See his early Kriterien der Gerechtigkeit (Berlin: Duncker 8c Humblot,
1963), which makes good use of the Wittgensteinian analytic tradition, the Husserlian
phenomenological tradition, the work of Kelsen, and many other legal theorists from
several countries, as well as his more recent Recht und praktische Vernunft (Gottingen:
Vandenhoek & Ruprecht, 1979), for a good illustration of the more intellectually
catholic and broadly international approach to the philosophy of law that is woefully
missing in most contemporary American research in the field.

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 780 SOCIAL RESEARCH

One important factor that tends to perpetuate this

provincialism is the dearth of internationally recognized jour-
nals devoted primarily to legal philosophy in this country.
Two of the major American journals of social theory, Ethics
and Philosophy fcf Public Affairs, are among those which reg-
ularly feature some law-related articles. One annual publica-
tion, The American fournal of Jurisprudence (formerly the Natural
Law Forum), is generally faithful to the sets of concerns im-
plied in its past and present titles, taken together; but its
influence is, for whatever combination of reasons, much less
extensive than, for example, the Archives de la philosophie du
droit, the Rivista internazionale della filosofia del diritto, and the
Archiv für Rechts- und Sozialphilosophie have been both in their
respective cultural spheres and internationally. Much of the
best current literature in American legal philosophy is spread
across the dozens of journals published by individual law
schools, some of which frequently, some of which occasionally,
and some of which almost never publish material of philo-
sophical interest. Quite recently, a newsletter published by the
Committee on Philosophy and Law of the American Philo-
sophical Association has endeavored to offset somewhat the
unfortunate consequences of this dispersal of efforts by in-
cluding a partial "bibliography of law journal articles for phi-
losophers," compiled by Ferdinand Schoemann. This is a val-
uable, though limited, development.

Common Concerns

A perusal of this list and of other relevant bibliographies

quickly yields a sense of the most common concerns of current
writers in the field. Some interest continues to be shown in the
ancient question of the "nature of law"; Theodore Benditt's
Law as Rule and Principle* is a respectable recent example of
8 Theodore Benditt, Law as Rule and Principle (Stanford: Stanford University Press,
1978).

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 PHILOSOPHY OF LAW 781

this. The questions of the optimal

and morals and of whether, in part
used to enforce a putative morality
ways, although the furor over Lord
position9 has begun to subside. Questions of judicial
decision-making (one of the principal concerns of Dworkin,
inter alios) continue to attract attention, while the adversary
system has begun to undergo greater scrunity.10 A legal devel-
opment of comparatively recent vintage in the United States,
the extensive practice of plea bargaining, has begun to raise
some philosophical eyebrows.11 There is probably greater
interest among philosophers than there was in the past in
ethical and legal problems stemming from medical practices;
abortion continues to be foremost among these, from a
content-analysis point of view.
The justification of punishment is a topic of continued but,
it is my impression, somewhat receding popularity, with the
unique exception of capital punishment.12 (What makes the
death penalty unique is the kind of punishment it is.) Besides
fines, which fail to excite most philosophers of law very much,
imprisonment is the only salient type of punishment meted
out in current American legal practice, and most of the con-
temporary writing about imprisonment and its effects seems,
for obvious reasons, to be of the throw-up-one's-hands vari-
ety.13 Of course, there is another alternative to imprisonment,
* Patrick Devlin, The Enforcement of Morals (London: Oxford University Press, 1965).
10 See Bronaugh, Philosophical Law, pp. 93-138.
11 An example of this is Kenneth Kipnis's essay, "Criminal Justice and the
Negotiated Plea," in Kipnis, ed., Philosophical Issues in Law: Cases and Materials (En-
glewood Cliffs: Prentice-Hall, 1977).
12 A good textbook collection of essays, classic and contemporary, on the topic of
punishment is Gertrude Ezorsky, ed., Philosophical Perspectives on Punishment (Albany:
State University of New York Press, 1972).
13 A masterful French work of potentially great influence in understanding the
historical and philosophical underpinnings of modern Western society's punitive
practices is Michel Foucault, Discipline and Punish: The Birth of the Prison, translated by
Alan Sheridan (New York: Pantheon, 1978). While it has been widely reviewed in
literary journals, it seems, not very surprisingly in light of the problems to which I
have been pointing, to have exerted almost no influence over the technical literature
of Anglo-Saxon legal philosophy.

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 782 SOCIAL RESEARCH

though it is not supposed to be "

confinement to a mental institut
written about the issue of mens re
the accused must be thought to hav
sane intent to commit his or her c
for the practice of pleading insan
legal breaches of the mens rea req
so-called "strict liability" provision
facturers of potentially harmful g
involves many related philosoph
free?) and psychiatric (e.g., is "m
real set of entities?) issues.
The most obvious example of a t
measured by the literature, has dec
decade is that of civil disobedienc
era of draft resistance, it was of
legal philosopher and constitut
Ronald Dworkin's 1968 answer to
taken to this issue by the Solicitor
Erwin Griswold, is probably Dwor
the borderline area of legal philos
more recent publications, by con
broached, although one may antic
the United States Government's restoration of selective-service
mechanisms in mid- 1980.
Meanwhile, the basic concept of individual rights against
government has come to receive even greater emphasis than
before in the current work of legal philosophers, though usu-
ally in rather different contexts from those of the 1960s and
often (though by no means always) out of motivations more
readily identifiable with the ideological Right than with a lib-
eral or radical Left. While "human rights" is a sufficiently
14 Among the most frequently cited, now classical, opposed works in this extensive
literature are Barbara Wootton, Crime and Criminal Law (London: Stevens 8c Son,
1963) and H.L.A. Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968).
15 First published as an essay in The New York Review of Books, it is reproduced as
chapter 8, "Civil Disobedience," in Taking Rights Seriously, pp. 206-222.

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 PHILOSOPHY OF LAW 783

vague, catch-all term to attract expressi

almost everyone, whatever his or her co
propriate relationship between the individual and in-
stitutionalized society may be, one discerns a definite increase
in scholarly concern with property rights, construed as a (or
sometimes the) basic form of individual rights, and such con-
cern is of course a most salient feature of the Right. Tibor
Machan, a qualified admirer of the novelist Ayn Rand, has
furnished a useful summary of "Some Recent Work in Human
Rights Theory"16 that implicitly confirms this observation of
mine. Further confirmation is provided by the great vogue
recently enjoyed by the neo-Lockean libertarian social theorist,
Robert Nozick, whose Anarchy, State and Utopia11 has been
frequently referred to in recent literature in the philosophy of
law, even though Nozick's preoccupation with strictly legal
issues is at least as minimal as that of his Harvard colleague,
John Rawls.18 An even better source, better because more
unquestionably within the legal domain, for confirming this
trend is a recently published book by another Harvard faculty
member, Charles Fried of the Law School, entitled Right and
Wrong.19 While he explicitly rejects the project, increasingly
popular among some utilitarian theorists in several disciplines,

16 American Philosophical Quarterly 17 (April 1980): 103-115.

17 Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, iyv4).
18 In his survey of rights literature, Machan, while apparently personally more
sympathetic than not to the Nozickian philosophy, at once points to and partially
excuses what many readers have found the most striking defect of Nozick's work,
namely, his unquestioning assumption of his first principles, or, as Machan puts it,
"Nozick's apparent rejection of the requirement to deal with the foundational prob-
lems." The justification of this strange procedure is, as Machan says, Nozick's firm
conviction that "the kind of social and political system that flows from such [Lockean]
rights (if implemented) accords with our moral intuitions better than would alterna-
tive systems (e.g., Marx's, Rawls')" (Machan, "Some Recent Work in Human Rights
Theory," p. 109). I shall have more to say about the appeal to moral intuitions at the
end of this essay.
19 Charles Fried, Right and Wrong (Cambridge: Harvard University Press, 1978).
This is not to be confused with a somewhat eccentric but perhaps ultimately more
philosophically stimulating book of the same main title published a decade earlier. See
Paul Weiss and Jonathan Weiss, Right &f Wrong: A Philosophical Dialogue between Father
and Son (New York: Basic Books, 1967).

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 784 SOCIAL RESEARCH

of an economic analysis of rights

as a vociferous proponent of the
rights, including property rights
tions to contribute to the good
defense of the individual doctor's
select his (or her, although suc
Fried) clients against the claim of
ual doctors and lawyers should giv
for the poor"21 is an example.22
It should not be thought, I agai
even most of the current literature on rights in legal
philosophy has the starkly ideological bent that appears in, for
example, Nozick's work. The very popular concept of the
right to privacy, for instance, is often analyzed in ways that are
relatively neutral with respect to conventional ideological di-
visions, as is the interesting and at least tangentially related
question of Good Samaritanism. (Traditional Anglo-Saxon
common law has not recognized any legal obligation on the
part of the ordinary passerby to come to the aid of someone in
distress; recent philosophical discussion has focused on the
merits of this stance, and recent legislation has tended at least
to shield would-be Good Samaritans from liability to future
lawsuits when their benevolently intended ministrations fall
short of complete success.) There has been a resurgence of
20 Fried himself focuses primarily on articles written by two economists, Ronald
Coase and Harold Demsetz. In his notes, however, he provides a very extensive and
useful bibliography of material written in this area (ibid., p. 210). Perhaps the most
frequently discussed exemplar of the economic approach to law and rights which is
included in this bibliography is Richard A. Posner's Economic Analysis of Law (Boston:
Little, Brown, 1974).
21 Fried, Right and Wrong, p. 187.
22 For a witty and, I think, deservedly devastating review ot this latest contribution
of Fried's, see Brian Barry, "And Who Is My Neighbor?", Yale Law Journal 88
(January 1979): 629-658. I find much of value in the following summary remarks by
Barry on the final page of his review: "Fried's theory requires us to say that it would
be wrong, as an attack on inalienable negative rights, for a society to have a public
morality that entailed duties of beneficence. I suggest, on the contrary, that to elevate
to the status of natural law the alienation of contemporary American society is
provincialism, and to put forward as binding on all mankind the latest intellectual
fashion in Cambridge, Massachusetts is parochialism."

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 PHILOSOPHY OF LAW 785

interest in the brilliant and rather a

twentieth-century American analyst
Wesley N. Hohfeld,23 that does not appear to me to be
ideologically motivated in any obvious sense. Nevertheless, it
should be evident that much of the work in legal philosophy
will always and inevitably be generated, in however masked a
fashion at times, from changing political and economic condi-
tions. And so it has been with the tremendous outpouring of
research literature on rights. This is made clear in the ex-
change, begun at the World Congress on Philosophy of Law
and Social Philosophy in Canberra in 1977 and since pub-
lished separately, between Hermann Klenner of the German
Democratic Republic24 and Alice Erh-Soon Tay25; Klenner's
skepticism about the uses to which the slogan of human rights
has been put by some Western political leaders, while ex-
pressed with a certain heavy-handedness, has its merits.

Social Realities

It would be salutary for philosophers of law to become more

universally open in their acknowledgement of the close de-
pendence of their field on changing social realities, and to
turn this to their advantage by reflecting more upon it in a
systematic and disciplined fashion. The iconoclastic American
"Legal Realists" of a half century ago attributed to their oppo-
nents the notion of a "heaven of judicial concepts." The
Realists initiated great and valuable intellectual reforms.
Nevertheless, contemporary legal philosophy still retains
something of this artificial celestial atmosphere, especially if we
add the words "and moral" before the word "concepts." There
23 Wesley N. Hohfeld, Fundamental Legal Conceptions, as Applied in Judicial Reasoning
(New Haven: Yale University Press, 1964; reprinted Westport: Greenwood Press,
1978).
24 "Human Rights: A Battle Cry for Social Changes, or a Challenge to the
Philosophy of Law?", Archiv für Rechts- und Sozialphilosophie 64 (1978): 465-477.
25 "Marxism, Socialism, and Human Rights," in E. Kamenka and A. Tay, eds.,
Human Rights (New York: St. Martin's Press, 1978), pp. 104-112.

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 786 SOCIAL RESEARCH

is still, in short, too much abstract

pretense that the law, at least at its
some transtemporal pattern of ju
virtues. While I am not suggesting
for more formal philosophical appr
including the use of symbolic-l
analysis of segments of existing leg
field of legal philosophy would ben
ers were more frequently to take
lived experiences of all those, under
tems, to whom legal phenomena ha
merely legislators and judges, but
larly the victims of actual crimes
nuinber of individuals who are or m
laws and legally sanctioned arrangem
with the law that occur under adver
these experiences that are more lik
sophical analysis.) As more philos
the philosophy of law from this ex
law as lived - and I am somewhat op
ning to occur26 - the field will inev
provincialisms of philosophical o
that I have ascribed to it in its c
American manifestations.

Among specific legal areas in which I can foresee a growth

of philosophical interest in the coming years are (1) the re-
lationship between business enterprise and consumers, (2) the
question of whether nonhuman entities in the ecosystem
should be given greater legal protection,27 and (3) interna-
tional agreements, particularly those concerning the treatment
of individuals. While it may be a simple matter to see how the

26 See ch. 3, "Injustices and Wrongs: Toward a New Emphasis in the Philosophy of
Law," in my Social Theory at a Crossroads (Pittsburgh: Duquesne University Press,
1980), pp. 81-116.
27 For a brief, fascinating, pioneering effort in this area, see Christopher Stone,
Should Trees Have Standing? Toward Legal Rights for Natural Objects (Los Altos: W.
Kaufmann, 1974; New York: Avon, 1975).

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 PHILOSOPHY OF LAW 787

first or even perhaps, in light of th

in public understanding of ecologi
has occurred in recent times, the
could well be approached from the
riences" that I have just advocated, i
appreciate the applicability of this
international law. Of the relatively l
ternational law by modern philos
being one very significant recent
spent on the relatively sterile issu
regarded as genuine law at all. Mo
point of view, it used to be taken for
subjects of the system, such as it wa
sovereign nations. Many developm
most notably the remarkably spec
ment known as the Universal Dec
have made this sphere much more
of ordinary individuals and have p
standards (e.g., in the case of the D
rights to employment, to freedom
living standard, etc.) against whic
justices suffered by a majority of th
measured. At a time at which it be
that the concept of national sovereig
very well with empirical reality, leg
less difficulty and greater motivatio
international agreements from th
experiences of the world's citizens.
One final piece of prophecy/exho
in order concerning the future of r
particularly since I have heard it
number of like-minded colleagues.
the word "intuitions," as this occu
"according to my (our) moral inst
tailed in the dialogues of legal (and moral) philosophers.
When employed, as it so often is, as an argument-stopper, it

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788 SOCIAL RESEARCH

reinforces cultural provincialism a

reflection and dialogue, and thus
of all research and writing that is
Yet, for reasons that have somet
ception of moral reflection (tho
blame for all that has followed) b
obscure, this locution has achiev
literature and even greater popu
ences and discussions. If law and,
philosophy thereof are to continue
dictum that "law is reason (or m
understanding "reason" not in th
web of external truths, but in the
sense of clear, objective rules and
ual and social experiences - then
to collective "intuitions" can at b
beginning a discussion, never of

28 Aristotle, Politics in, 16, 1287a.

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