philosophy of law thesis

Journal for Constitutional Theory and Philosophy of Law / Revija za ustavno teorijo in filozofijo prava

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Legal philosophy as practical philosophy

My purpose in this paper is to make a case for the strictly philosophical nature of our discipline, legal philosophy. I first take a prior stance on the issue of what philosophy is in general and outline some premises for the definition of philosophical rationality. This then leads me to critically examine Bobbio’s dichotomy between jurists’ legal philosophy and philosophers’ legal philosophy. It is essential to reformulate the relationships between legal philosophy as a “special” or “regional” discipline as opposed to “general” philosophy. So thirdly, I re-examine this problem using the distinction between concepts of law and ideas in law. Fourthly, I defend the thesis that, when ascertaining the type of philosophy the philosophy of law is, the most decisive factor is not so much (or not only) the relationship between philosophy of law and philosophy in general as, more importantly, the relationship between it and law itself. I argue that the nature of law itself makes its practice inevitably and ineluctably associated with philosophical ideas and conceptions. This practical view of law is tightly bound with a view of legal philosophy as a practical philosophy, and this is the main thesis I shall defend here. Different expressions of this practical view of law can be found in prominent contemporary authors who go beyond the dichotomy of legal positivism-natural law (such as Nino, Alexy, Dworkin, Atienza). The essential feature which I regard ties philosophy of law to the condition of some “practical philosophy” is the role played by the concept of value, i.e. the centrality and pre-eminence of its evaluative dimension .

Index terms

Keywords: , 1 introduction.

1 Anyone grappling with the problem of the status and justification of the “Philosophy of Law” as a philosophical discipline has to address a series of extraordinarily intricate problems. The first problem is that of explaining why the institutionalisation of the discipline is so characteristically modern : did Hugo’s Philosophie des positiven Rechts (1798), Austin’s Philosophy of Positive Law ( 1861 ) and Hegel’s Philosophie des Rechts ( 1821 ) truly herald a new discipline or simply a new name for a kind of philosophical reflection that was already ancient and traditional? This problem depends on one’s philosophical stance on natural law.

2 The second problem relates the historical and thematic bifurcations characteristic of our discipline: first, the bifurcation stemming from the opposition between “jurists’ legal philosophy” and “philosophers’ legal philosophy” (Bobbio 1990) and, secondly, the bifurcation resulting from the opposition between “philosophy of law” versus “theory of law”. This problem depends on one’s philosophical stance on legal positivism.

3 In this paper, I plan to focus primarily on the second problem. My purpose is to make a case for the strictly philosophical nature of our discipline. This means that I must first take a prior stance on the issue of what philosophy is in general, outline the minimal premises for the definition of philosophical rationality and establish a meta-theoretical classification of the genres of philosophical discourse (Sec. 2). This will then lead me to undertake a critical examination of Bobbio’s dichotomy between jurists’ legal philosophy and philosophers’ legal philosophy (Sec. 3). Thirdly, it is essential to tackle the thorny issue of reformulating the existing relationships between legal philosophy as a “special”, “sectorial”, “applied” or “regional” discipline as opposed to a “general” (or “pure”, “fundamental”, “essential”, etc.) philosophy. Here we find a convergence between the generic problem of what the “parts” of philosophy are, in the general sense of the discipline (logic, epistemology, ethics, anthropology, natural philosophy, etc., even though they themselves are also often seen as “special” philosophies) and the specific problem posed by a philosophical discipline which is, furthermore, explicitly “centred” around a particular institution associated with concepts of its own, as is the law (in this it is comparable to other “philosophies of”: philosophy of religion, philosophy of art, philosophy of history, etc.). I shall re-examine this problem using the distinction between concepts of law and ideas of law (Sec. 4). Fourthly, I shall defend the thesis that, when ascertaining the type of philosophy the philosophy of law is —or should be—, the most decisive factor is not so much (or not only) the relationship between philosophy of law and philosophy in general as, more importantly, the relationship between it and law itself (Sec. 5). I argue that the nature of law itself makes its practice inevitably and ineluctably associated with philosophical ideas and conceptions. This practical view of law is tightly bound with a view of legal philosophy as a practical philosophy, and this is the main thesis I shall defend here. Different expressions of this practical view of law can be found in prominent contemporary authors who go beyond the dichotomy of legal positivism-natural law (such as Nino, Alexy, Dworkin, Atienza). The essential feature which I regard ties philosophy of law to the condition of some “practical philosophy” is the role played by the concept of value, i.e. the centrality and pre-eminence of its evaluative dimension. The fundamental ideas of the philosophy of law are thus values, in the sense of practical ideas (Sec. 6) . Hence, legal philosophical discourse has to remain close to the practice of law and is necessary for it. What gives legal philosophy a special place (even a kind of “pre-eminence”) within the general realm of practical philosophy is its privileged perspective on practical fundamental values (that is, moral and political values), due to its proximity to the practice of law, which is the institution whose mission is precisely to reconcile conflict and restore the unity of these values in justifiable and argumentative terms. This approach allows us to go beyond the dichotomy between natural law (that claims that values constitute the ultimate underpinning of law, but in the sense of a dogmatic or metaphysical philosophy) and legal positivism (defined by evaluative distance and neutrality regarding law, but in a sceptical or relativistic sense, postulated more as a scientific than as a strictly philosophical discourse of law).

2 A general conception of philosophy

1 Atienza (1989: 371); see also Díaz (1992: 334, 369).

2 Bueno (1970; 1999).

4 I will adopt the view of the philosophy of law as the “rational and critical totalisation of the phenomenon of law”, as suggested by Manuel Atienza. 1 The key to this conception (which was inspired by the Spanish philosopher Gustavo Bueno) 2 lies in the distinction between concepts and ideas . Concepts are inherent to the sciences (in a broad sense, including technical fields), while ideas are the very stuff of philosophy. Both —scientific concepts and philosophical ideas— are “critical totalisations” (“criticism” is not exclusive to philosophy) and both encompass universality. However, the totalisation and universality of ideas is not the same as, and cannot be reduced to the totalisation of concepts. Philosophical problems abide by their own format: they are neither technical nor scientific problems, but rather emerge directly or spring up at the same time as technical or scientific problems, representing a second degree of reflexivity. Philosophy is not an original or “first-degree” body of knowledge. It is independently justified as a unique, substantive body of knowledge and cannot be reduced either to simple “adjectival” knowledge, doomed to be “liquidated” by the sciences; or “genitive” knowledge, confined to a simple logical analysis or encyclopaedic synthesis in relation to scientific knowledge. Nor, obviously, can it be reduced to some kind of “dogmatic” or “metaphysical” knowledge, disconnected from the sciences.

• 3 However, “transcendentality” would then have not an aprioristic or metaphysical meaning (as it doe (...)

5 Without question, the sciences are the most universal exponent of knowledge at our disposal. However, theirs is a universality that is restricted or bound to certain conceptual domains (or “universes of discourse”) which are more or less closed according to objective theories and laws. Following a traditional nomenclature, Bueno called these domains “categories”: the physical, chemical, mathematical, anthropological, sociological, psychological and other categories. Scientific concepts (including techniques and technologies) would be universal relative to or within each of these categorical domains, filtering out everything that is conceptually irrelevant, or external to them. However, for this very reason, everything that can be said rationally about each category individually or about all of them together (i.e., on the conceptualisation of the world) would not be exhausted . Thus, at the very least, questions such as the relationships between these diverse categories (how many sciences there are and how they differ among each other), their scope (how far the universality of each science stretches) and their validity (what it means to consider a given scientific knowledge universally grounded) could no longer be resolved from inside the categories themselves, as they do not constitute scientific or technical problems to be analysed using their own conceptual instruments. On the contrary, they require a different kind of rational treatment, a totalisation of a different type, one that is also universalist. And this, precisely, is what philosophical discourse is. There would then be another genre of “second-tier” concepts, the universality of which cross-cuts and cannot be reduced to the categorical concepts. These are transcendental concepts in that they “transcend” each of the categories, but not all of them as a whole (just like the three classical ideas of traditional metaphysics laid out by Kant in his first Critique ). 3 These concepts could actually be called philosophical ideas , once again following a tradition that begins with Plato and reaches down to Kant and Hegel, although this does not mean that we are required to adhere to the traditional idealist conception of metaphysics. Ideas are neither separated forms , nor a priori units of knowledge , nor figures of an unfolding Spirit ; rather, they can be viewed as ideas in an historical-cultural sense, bearing in mind that although associated with “ideologies” in the Marxist sense, they cannot be understood merely as ideological-conjunctural contents either. Philosophical theories are therefore nothing other than more or less systematic elaborations and interpretations of these ideas throughout their historical development. They thus reflect problems which have been sparked repeatedly by the concepts of the sciences, yet they resist being equated with or reduced to mere scientific or technical problems. As they involve ideas and not only concepts, philosophical problems truly have their own format. They are not resolved by the sciences or techniques but instead reframed by them (hence their historical persistence). A philosophical problem is characterised primarily by the fact that it questions an entire category as a whole, and does so in a particular way, connecting it to others and inquiring into its foundations and validity. This is what happens, for example, with epistemological and ontological questions, which question how categories represent or conceptualise the world and how the world is represented or conceptualised by them. The answer to this requires a kind of totalising reflection which encompasses criticism —that is analysis, comparison, classification, setting limits— of the scientific concepts themselves according to more or less systematic general conceptions which deal with epistemological ideas (a certain theory of science or of knowledge) and ontological ideas (a certain theory of the elements which make up the real).

6 So how does this “critical totalisation” translate in relation to law when defining legal philosophy? Firstly, we have to specify the meaning of this notion of “totalisation”, and then we must be able to give precise meaning to the cliché of the “critical” nature of the philosophy of law.

7 Regarding the former, Atienza specifically associates the meaning of this totalisation with the transcendental and inter-categorical nature of legal philosophy. Thus, he maintains that “the essential function of philosophers of law should be that of acting as ‘intermediaries’ between legal knowledge and practices on the one hand and all other social practices and knowledge – including philosophy – on the other”, and that “its place lies precisely in the frictions and vacuums produced by their functioning and interaction. Therefore, legal philosophy may claim to be a totalising knowledge inasmuch as its points of departure and arrival are these other knowledges and practices (Atienza 2015: 5).

8 Regarding the latter, Atienza assumes that the critical dimension of legal philosophy stems from the fact that it adopts “a perspective that does not match that of those who are situated inside each of these parcels, as the philosopher of law can and should question the established frameworks, an approach forbidden to one who operates exclusively from inside a given science or technique (who, naturally, does not relinquish a critical approach but rather exercises it differently)” ( Atienza 2015: 5 ).

9 Both features, as we can see, are largely similar. And both lead us to pose the same problem: how is it possible for the philosophy of law, which is “focused” on a single category, to be genuinely “philosophical”, that is, for it to be a totalising-critical (transcendental or cross-categorical) discourse? In other words, if what makes legal philosophy a unique and specific discourse is its “cross-categorical” or “transversal” nature in relation to the different conceptualisations of the phenomenon of law —both internal and external to the legal category— how can it still be a “regional” philosophy in the twofold sense of being a philosophy distinct from “general” philosophy while also being “local” or “particular” in nature (that is, associated with legal discourse, a discourse which is obviously used locally and particularly)? How could these two characteristics be made compatible: its “genitive” legal nature and its universal or philosophically “transcendental” nature?

3 Jurists’ legal philosophy and philosophers’ legal philosophy

• 4 “What is there to be said about the ‘nature’ of legal phenomena beyond that which emerges from the (...)
• 5 “It is understood that the preference for the works of jurists who raise themselves to philosophy (...)

10 This leads us to a related problem —famously posed by Bobbio— which is the controversial duality between jurists’ legal philosophy and philosophers’ legal philosophy. This problem stems from the fact that the tradition of Western philosophical thinking on law has historically occurred in a “bifurcated” fashion: by philosophers who come to law from their omni-comprehensive systems of ideas seeking to fit it into them, and by jurists who somehow draw from certain general philosophical frameworks to construct theories that are also omni-comprehensive, but whose scope primarily falls within the field of law, or which are essentially focused on reflecting and developing legal categories. We can easily illustrate this bifurcation by contrasting Aristotle and Cicero in the ancient world; Augustine and Gratian or Thomas Aquinas and Bartolus in the Middle Ages; and “philosophers’ natural law” (Suárez, Leibniz) and “jurists’ natural law” (Grotius, Thomasius) in the modern period. Ever since philosophy of law emerged as a new discipline in the contemporary era —replacing natural law, which was, in fact, legal philosophy— it has been cultivated almost exclusively in law faculties instead of in philosophy faculties. That is, its main practitioners are jurists. This, coupled with academic specialisation, has increased the endogamous bias of legal philosophy (as well as the isolation of general philosophy from the “closed garden” of law, in Bobbio’s words). However, it is true that legal philosophers have continued to draw from general philosophies, both current and past (thus, Kelsen cannot be understood without Kant, Hart without Wittgenstein, Finnis without Thomas Aquinas, Alexy without Habermas, hermeneutics without Gadamer), which nonetheless are given a new and different dimension, driven by a reflexive interest in the law and in developments in legal practice (thus, Kelsen has said much more about legal duty than the neo-Kantians, and the same holds true of Hart compared to Wittgenstein on legal rules, and Alexy on the theory of legal discourse compared to Habermas). Therefore, the relationship between the two —“regional” legal philosophy and general philosophy— is a complex one. It is primarily couched in truly controversial terms because of the fact that, after the decline of natural law, the entrenchment of legal positivism as a core, dominant vein in contemporary legal thinking went hand-in-hand with a parallel tendency to liquidate the substantive aspect of philosophy (a feature it shares with both general 19 th -century positivism and neo-positivism). This is yet another case of what Bueno (1970: 56) calls the “positivistic death” of philosophy. In this way, the philosophy of law claims to be a discourse “by and for jurists” instead of “by and for philosophers”: that is, a technical-practical discourse inherent to the category of law. Even the nomen “philosophy of law” is disappearing, dissolving into the more generic “theory of law”, the latter (in the continental tradition) meant as a discipline with primarily scientific 4 or doctrinal pretensions —a “high dogmatics” constructed in the mould of the positivistic Allgemeine Rechtslehre — or (in the Anglosaxon tradition) jurisprudence . That is to say, it is a legal-categorical rather than a “philosophical” discourse in both cases. Legal positivism, in Radbruch’s celebrated words, thus “euthanizes” philosophy of law in that the latter sees itself as “part” of a “previously given” philosophical system in the traditional style. It is not philosophy which determines the unity of ideas in a “top-down” reflection on the law, but rather categorical legal experience, inasmuch as it provides the materials for “bottom-up” building, as Bobbio claims. 5

• 6 Bobbio’s core argument is that even though it may be more analytical than synthetic and have philo (...)

7 The expressions are drawn from Cotterrell 2014.

11 The preference for jurists’ philosophy of law is unquestionably backed by an extraordinarily powerful argument: the empirical reference to the legal category, to legal positivistic concepts and to the real practice of law. Legal philosophy should be a “philosophy of positive law” built upon the problems faced by contemporary states governed by the rule of law, along with their complex technical legal-administrative organisation or progressive constitutionalisation, as opposed to a speculative or unproductive reflection (metaphysical or dogmatic). 6 However, the issue is whether this proximity to legal categorical experience may not also act as an obstacle —and not necessarily an advantage— to constructing a truly philosophical-critical discourse around the law. That is, the question is whether self-understanding of the philosophy of law as a “jurists’ philosophy” cannot also lead it to become ancilla iurisprudentiae , in a reflection indistinguishable from that of legal specialisation, a mere professional propaedeutics, a philosophical patchwork or bricolage adjunct to jurisprudence, 7 in short, yet another part of legal ideology in the broad (though not necessarily negative) sense. This situation could be compared, mutatis mutandis , to that which entails simply admitting that the philosophy of religion only makes sense when made by, and when serving, the adepts or theologians of a given denomination. This risk of “dogmatism” has not only been fostered by the discipline’s aforementioned specialisation and institutional location, but also largely by the methodology of legal positivism, in which the prioritisation of the doctrinal (or “internal”) point of view has led the concept of law to become insular and detached from other categories, both social-scientific and political-moral. The thesis of the separation between law and morality, the “purity” of the theory of law, the neutral descriptive or evaluative study of “what law is” instead of what it “ought to be”, and the consideration of all “external” perspectives as irrelevant to jurists, are well-known expressions of this methodology, which leads one to conclude that the philosophy of law must be alien to moral philosophy, political philosophy, social philosophy and the like. In other words, legal philosophical discourse is doomed to be relevant only to jurists rather than a subject of interest to “philosophers” or one about which they have anything interesting to say.

• 8 Judging from the names he mentions (Hobbes, Ihering, Gény, Ehrlich, Kelsen, Kantorowicz, Ross, Har (...)
• 9 A similar three-way division can be found in Oakeshott 2007 when he talks about legal philosophy a (...)
• 10 Some people have even dismissed positivistic legal philosophy with an analytical orientation as “s (...)

11 Kant (1798) 1968b: 28.

12 And this is the core point that I wish to discuss with regard to the need to rethink and redefine the status of the philosophy of law. Not just any discourse about law can genuinely be called philosophical, even if it bears this name, nor can all philosophical discourse about law be labelled dispensable or dogmatic as such. The contrast that Bobbio formulated is actually based on a false dilemma. The aprioristic dismissal of “philosophers’ philosophies of law” is gratuitous: it is not actually targeted against “philosophy” itself but against a particular philosophy whose assumptions or theses are deemed dogmatic, scholastic or metaphysical by another particular philosophy (in the case of Bobbio, from legal positivism). 8 Likewise, the preference for “jurists’ philosophy of law” can (and in my opinion, should) be accepted without this meaning embracing an insular or purely endo-legal approach. Legal philosophy can only be truly philosophical if it is critical in nature, and this means that it must be positive but not positivistic, associated with the concept of legal experience but not dogmatic, coextensive with practical legal discourse but not merely “genitive”. That is, it requires an inter-categorical perspective, a “totalisation” which results in making relevant connections between the legal category and other categories. 9 This is the path followed by the post-positivistic philosophy of law. But this totalisation can only occur in terms of ideas and theories that must necessarily be drawn from a general philosophical conception, and this means that all legal philosophy (including positivistic legal philosophy) 10 is the “application” of philosophemes. In consequence, to paraphrase Kant, it is not clear whether “the servant”, i.e., philosophers’ legal philosophy, “is the mistress’s torchbearer or train-bearer”. 11

13 According to the approach posited above, the philosophy of law —just like any other philosophical discipline— should refer to philosophical ideas which form the common thread binding regional philosophy to general or transcendental philosophy. These ideas would essentially be of two kinds: epistemological and ontological. Thus, the philosophical method is one and the same (regardless of whether it is practised by jurists or philosophers) and can only consist of this twofold movement which starts from the categorical concepts (or the problems caused by them, which we shall discuss below), analyses them in terms of second-order ideas or concepts, and then returns back to them to offer a new synthesis or re-composition in light of a conception that forges relevant (inter-categorical) relationships among them. Thus, if these are the two methodological or dialectical moments of philosophical rationality — regressus and progresssus — it is simply because the categorical concepts can be analysed either according to the relationships among each category and the kind of knowledge or conceptualisation that fit within them (the kinds of knowledge, studies, sciences, etc.) or according to the relationships among those kinds of knowledge and the categorical realities to which they refer (what domain of the world they encompass, what entities they attest to, what connections or laws they determine, what kind of objectivity they allow for, etc.). Put more simply and applied to the matter at hand: legal philosophy devises a map of legal knowledge and realities.

4 The law: concept or idea?

• 12 By “dogmatic philosophy” I mean any kind that envisions itself not as a reflective, secondary know (...)

14 We have said that what justifies the substantiveness of the philosophical perspective is the need that emerges, within the internal conceptualisation of a given category, for a second-order totalisation in terms of omni-comprehensive ideas or schemes that go beyond such a category —critically— and connect it to other categories or concepts. However, the goal is not simply to “apply” this understanding of philosophical rationality to the philosophy of law. This would be the error of a dogmatic (aprioristic or metaphysical) conception of philosophy, as Bobbio correctly pointed out. 12 Instead, the goal is to show how this kind of rationality is, and always has been, present in the philosophy of law itself (just like in any other philosophy) once the philosophical method is being put into practice. Indeed, the presence of the same method of rationalising legal phenomena following a two-way path between the categories or concepts of law and certain philosophical ideas has been in constant practice in legal philosophy ever since ancient Greece. Even though in the Natural Law, Kantian and Hegelian traditions, this has tended to be limited to a single idea, i.e. justice, in contrast to the “concept” of law, it is nonetheless unjustified: the repertoire of legal-philosophical ideas is much broader and encompasses all legal-categorical concepts. We could claim that the inner structure of these concepts is already constituted by philosophical ideas. Philosophy of law does not “create” the ideas but finds them already operating in law and then proceeds to organise and systematise them “on a second tier”, rather than “apply” them top-down.

• 13 This can be seen, for example, in Raz’s distinction between the “concept” and the “nature” of law (...)

15 This also makes it possible to grasp the fact that legal philosophy has always been a legally implemented philosophy, i.e., a system of ideas with either a revolutionary or emancipating purpose or a conservative and legitimising purpose with respect to the legal realities in any given period of time. This is a very important aspect of what it means to be a practical philosophy. Both the philosophical methods and the objective ideas with which it works have taken on different meanings in law through the very evolution of legal forms. Philosophy of law has always kept in line with the historical development of legal phenomena. This is how the historical relationships between Roman law and mediaeval ius commune or common law and Aristotelian-Scholastic philosophy can be interpreted. Incidentally, Bobbio’s omission of Aristotle is particularly glaring, as he is the source of the very idea of jurisprudence , which underlies a significant epistemological understanding of the theory and practice of law common to all Western traditions. Another illustration of this common evolution is the relationship between rational legal philosophy and Enlightenment philosophy with regard to the historical process of State formation, and the positivisation of modern national law. In both examples we can find jurists’ —and not just philosophers’— (natural-law) philosophies. And so we can understand that if the philosophy of law has emerged with this name precisely in the modern period, associated with the conglomerate of doctrines which we call “legal positivism”, this is because positive law itself has substantially transmuted its configuration and structure, thus calling for a new theoretical reflection. Thus, paraphrasing Hegel, legal philosophy could be defined as a legal era captured in thinking, that is, in ideas, beginning with the very general conception of law, which should then not be a concept but rather a philosophical idea . 13

16 If we accept a functional-historical conception of legal philosophy such as the one outlined above —that is, not a metaphysical or dogmatic one— we can see that the organisation of its inherent ideas has to be sought not so much from within (or in the “philosophers’” philosophy) as from the categorical reality which it seeks to analyse, i.e. the law itself. This is a consequence of understanding that the ideas we are discussing exist within the historical and social process (unlike any aprioristical metaphysics), and that they do not belong to an ideal topos uranos (nor yet are they mere ideologies associated with groups or classes). Changes in the legal realities are what lead to philosophical ideas which, in turn, allow us to better reconstruct and understand those changes and influence them by means of new ideas. For this reason, before answering the questions of how the philosophy is applied to law or to what purpose , we must question why this application is needed: why the law needs to incorporate any philosophical reflection, whether it comes from jurists or philosophers.

17 To develop the thesis suggested in this question, we have to consider two issues. The first is what it means to say that law is a “category”. The second is to identify what kind of “critical totalisation” is relevant in this regard in order to yield a true philosophical reflection.

18 i) Considering whether law is a category is tantamount to inquiring into the conceptualisation (epistemology) and reality (ontology) of legal phenomena. It would be difficult to find a view of law that denied that this categorical nature is essentially practical, inasmuch as it is an institutionalised social technique. Its “positivity” is associated with this fact (and it is no coincidence that the practical category of law is the first place where this very idea of “positivity” emerged, before “positivism”). Even natural law, as a dualist theory of law, must include the “social thesis” that legal positivism rendered redundant: only what is produced by human practices is (or stops being) “law”, with no need for further qualification. The “technical” dimension of law is inseparable from its “artificial” nature as an activity or product of agents who are, not coincidentally, called legal “operators”. The categoricity of law is also associated with its normativity. Legal institutions (legislative, judicial, executive) consist of linked practices aimed at continuously producing and applying norms. They are also second-order practices in that legal institutional operations have a social anchor: they assume given practices and norms, and their purpose is to establish a certain order with regard to these practices and norms, interfering in their course by means of operations and decisions. The institutional structure of law is thus situated in a middle ground between moral institutions and political institutions. The legal norms that result from this practical institutional structure are viewed as the ultimate social norms —that is, final or definitive, not of course morally infallible norms.

19 ii) If we accept these extremely broad premises, they should yield the key to the notion of “totalisation” to which we have been referring. Atienza (1989: 371–2) boils this idea down to its essence:

The role of the philosophy of law in legal culture as a whole is similar to that performed by law in society overall. The law is said to be a system of social control because it oversees and somehow directs the way social institutions operate; the juridical is not an attribute exclusive to certain social sectors or institutions but rather —once again using C. Nino’s metaphor— it is something that is everywhere, just like air in the physical world. Nor does the philosophy of law have a bounded, exclusive terrain within all legal and social knowledge; its terrain is instead to be found in the relationships among these diverse sectors of culture.

20 If legal philosophy is a totalising reflection, it is because law per se is a totalising institution, a pars totalis of society as a whole which, precisely for this reason, demands recourse to philosophical ideas of a certain kind.

14 Kant (1797) 1968: 229-230 (“Einleitung in die Rechtslehre”, § B).

21 When asked about the concept of law ( quid ius ), Kant is famous for having said that jurists can only respond tautologically by referring to “what the law is” ( quid iuris ), that is, to “what the laws in a given place and given time say or have said”. This “purely empirical” reference to the categorical nature of law or legal positivity is, Kant alleged, insufficient: “a merely empirical theory that is void of rational principles is, like the wooden head in the fable of Phædrus, fine enough in appearance, but unfortunately has no brain”. By this he was pointing to the need to adopt a philosophical perspective: it is essential to seek a “rational” way that is grounded in the concept of law, “abandoning those empirical principles and searching for their sources in pure reason”. 14 But what I somehow want to explore is the path opposite to the one discussed by Kant. The ideas of legal philosophy should not be sought in any “pure” aprioristic reason but rather in categorical legal practices themselves. When they establish “what the law is” (i.e., what is legally regulated) they are already, by necessity, assuming some conception about what the law is ( quid ius ), and these conceptions are precisely those which involve the philosophical ideas that make up the sphere of reflection of legal philosophy. Thus, the goal is to show that the practicality of the legal category is actually not merely empirical and does not entail a mere denotative allusion to “legal practices” or to law as a “social practice” in the sense of a “matter of fact” (as the positivists also often view it), but that it also includes elements of universality that lead it to transcend its factual dimension (though without necessarily entering into metaphysics). Such universal elements — which, as we shall see, are simply values— are the necessary components of legal rationality, of the very discourse of law, and they make its concepts characteristically extend beyond the categorical framework from which they emerged.

5 Ubi ius, ibi philosophia

• 15 The formation of classical philosophy is closely linked to the discussion against sophists and ora (...)

22 What gives conceptualisations of the legal category a philosophical scope is not merely the fact that they contain “totalisations”. Totalisations are common to any category, just as any scientific or technical category entails exercising criticism at some level. As we have already said, the uniquely philosophical form of totalisation appears in a multi-categorical and therefore transcendental context. And this holds true of legal concepts inasmuch as their practical and normative nature implies connection and synthesis among different categories: moral, political, social, economic, etc. The kind of normative totalisation which is characteristic of the legal category brings it to the verge of philosophy. While this does not mean that the purpose of law is to “solve philosophical problems”, it should nevertheless imply that the practical problems of law cannot be solved without using philosophical ideas and conceptions. Additionally, we should not lose sight of the fact that the very origins of philosophy in Greece were closely tied to discussions of all sorts of problems —logical, moral, political, etc.— closely related to legal categories. 15

16 Cf. Viehweg 1991: 35, 44ff.

23 Yet in addition to this multi-categorical definition, there is a second feature of the legal category that forces its concepts to make “totalisations” without ceasing to be concepts. Because it is institutionalised, the law is a collective practice, an aggregate of extraordinarily complex and highly internal specialised sub-institutions —at least where legislative, executive and judicial functions can be minimally differentiated— which operate according to decisions of diverse subjects through extensive periods of time. This multiple diversity of functional parts means that unity and coherence of purposes within legal practice are only possible if it incorporates specific devices of reflective rationalisation to carry out its functions of producing and applying norms. The law is thus largely a corpus of “doctrine”, that is, normative practice plus theory, connected internally. Its facet as a technique for social control is inseparable from its dimension as reflective, “ideological”, doctrinal technique, which implies a high degree of abstraction in its approach to social agency. Legal practice depends on a complex conceptual and theoretical instrumentarium in which we can discern two different genres. 16 The first contains the formal doctrines or theories which outline the technical and methodological resources and procedures associated with legal practice as a “formalist” practice, that is, centred on legal norms in their role as “forms” or structures through which it intervenes in social action (primarily rules and principles). These doctrines substantially supply the legal norms with an identification, classification and rank (a theory of the legal “sources”), as well as the results and procedures used to implement them in practice (a theory of method or interpretation). The second genre contains the material theories which supply overarching conceptions of the substantive normative contents , the purposes and values which the legal system is geared towards achieving via the aforementioned techniques and methods (e.g., a theory of constitutional rights). Both kinds of theories or doctrines, which are eternally intertwined, comprise a legal ontology and epistemology, that is, a working “philosophy of law”. They form what has been called “legal paradigm”, “legal reason”, “legal ideology” or “shared legal consciousness”, which can also be seen as a true “worldly” or “professional” philosophy of law, or a “jurists’ spontaneous philosophy” which encompasses a self-conception of law ad intra and a “legal conception of the world”, that is, an ad extra interpretation of reality (social, political, economic, natural) stemming from legal rationality as a second-order rationality.

24 A third fundamental aspect of these totalisations of legal rationality which decisively brings their format closer to philosophical totalisations is related precisely to this dimension of second-order normativity. I am referring to the fact that it has a dialectical constituent nature; that is, it is structurally associated with conflict, deviation, incompatibility, contradiction, incommensurability and controversy. Therefore, its rationality essentially consists of deploying strategies aimed at using discourse and argumentation to manage and disentangle these conflicts and incommensurabilities. This is obviously related to the fact that the law as a social institution is primarily charged with being “the last resort” ( ultima ratio ) and has a coercive monopoly on conflict resolution and the enlisting of cooperation and coordination on a collective scale. However, precisely because of this, its norms and decisions are the outcome of a “syntax” or composition of essential plural or heterogeneous parts or elements which are in constant conflict and imbalance. There is no need to belabour the fact that this is also true of both producing laws (legislative, constitutional) and applying them (judicial, administrative). The logical construction of kinds or types of action and the individualisation and specification of the particular practical situations arising from them are a form of totalisation, and the same holds true of the finalistic reasoning (composition of interests and objectives) and balancing deliberation (composition of values) from which legal norms and decisions result. In both cases, the practical problems that are addressed by the law are therefore very similar to philosophical problems. They both entail conflicts whose very nature somehow compromises or puts in question the entire category and exceeds it “from the inside out”. The most common manifestation of this goes beyond the fact that each legislative or judicial decision entails a holistic regressus to the entire “legal system” as a whole (Dworkin’s “integrity” for instance). Furthermore, this systematisation cannot merely be logical or formal. The legal system is not a “logical system” but a “practical system”, one that is doctrinal, prudential or justificatory (although, of course, its justifications cannot avoid logic). And this means that rather than being a “closed” category by application of its very internal conceptual and theoretical methodology (as would be the case if it were a scientific category), it is a methodology that presupposes the essentially “open” nature of legal practice. In other words, its “closure” can only occur by incorporating elements from other categories. Given that the law is a second-order system, these elements cannot be anything other than the overarching purposes and values that the legal system strives to materialise in the first-order social practices, purposes and values that the law itself does not create but rather recreates and shapes in practical terms. Thus, we are dealing with the incorporated contents which we called “material theories” above, substantive conceptions that are necessarily political-moral (and therefore “philosophical” in the sense noted) and which legal practice necessarily merges with.

6 Legal philosophy as practical philosophy

25 If legal rationality is presented this way, as “philosophical” conceptions that are an internal, necessary part of law itself as a doctrinal system, then law should have its own “genitive” philosophy of law. Theoretical conceptions usually considered to belong to academic philosophy of law (legal positivism, formalism, natural law, constitutionalism, realism, etc.) also shape jurists’ own “professional philosophy” in itself; this is particularly visible in the more abstract doctrinal strata of legal practice, which are also the most far-reaching (such as constitutional courts). Therefore, the point of contact between legal philosophy as a discipline and law itself is to be found here: philosophical conceptions of law are an internal part of its practice, and the theories that shape legal practice partly overlap with the philosophy of law.

• 17 Thus Bobbio himself assumes this when he ends his paper by redirecting the opposition between phil (...)

26 Legal philosophy in the strict or academic sense could then be defined as any formally philosophical reflection aimed at systematising ideas which already have some level of reflective categorical development within law. Here is where, as mentioned above, we must considerably adjust Bobbio’s general assessment of the contrast between jurists’ and philosophers’ legal philosophy. This contrast distorts the fact that any philosophy of law, no matter whose it is, has always consisted in applying more or less systematic philosophical schemes to law (and it is impossible to see how it could be otherwise). On the one hand, Bobbio does not pay enough attention to the fact that law is a historical-cultural institution which poses general philosophical problems for any philosophy. As such, law has always been present in the ideas coined by the great general philosophers in the Western tradition, a part of which, since Aristotle, has been known as “practical philosophy” ( politiké ), which encompasses moral or ethical philosophy, political philosophy and social philosophy in general. Suffice it to mention the very idea of “law” ( lex ), the practical use of which is the outcome of the synthesis of different categorical conceptions: moral, scientific, legal. The “persistent questions” (Hart) raised by law are general philosophical problems, such as its origin and its relationship with the ideas of normativity, power, society, justice, morality or scientific truth. On the other hand, the general preference for jurists’ philosophy of law is unjustified. Because of their training, jurists are best poised to undertake a philosophical reflection based directly on legal categories (which is imposed on them by their own methodology), and this explains why academic legal philosophy has primarily been cultivated by “jurist-philosophers”. However, this in no way guarantees complete immunity from metaphysics or dogmatism. In any historical period, jurists have appropriated general philosophies when devising their doctrines (indeed, the very category of legal has always needed a covering of philosophy with which to build its internal meta-theory). It could be claimed that not a single philosophical doctrine has failed to receive an incorporation or adaptation from the field of law (Thomism, Kantism, Marxism, Hegelianism, pragmatism, phenomenology, neo-empiricism, analytical-linguistic philosophy, hermeneutics, discourse theory, post-modernism and any other philosophical “-ism”). The examples of “applied” philosophy that Bobbio censures are also the work of jurists, and not just of philosophers who “speculatively” descend to the field of law. This proves that the “application” of philosophical systems itself does not deserve the aprioristic label of metaphysical or dogmatic —but rather those specifically applied theses, concepts, and methods. 17

27 Instead, what the history of legal philosophy shows us is a continuum of ideas which all converge in law and are modulated differently (but not in a mutually exclusive way) by general historical philosophical systems and by the academic philosophy of the law as a discipline embedded in the law. Jurists’ philosophical conceptions, which are, as we have seen, internal totalisations of the very category of law required by the kinds of problems dealt with by the practice of law, are where the two intersect. These conceptions are unquestionably the best available philosophical entryway into the law, in that they supply the basic repertoire of legal-philosophical ideas and, in this sense, must be capable of being incorporated by any philosophy of law that does not seek to be metaphysical or disconnected from legal experience. Yet they must also be the target of criticism and reframing in general or transcendental philosophical terms, rather than being viewed as inherent to a purely endo-legal or intra-categorical discourse. And that criticism means that legal philosophy must necessarily interweave with moral philosophy and political philosophy; that is, it must be constructed within the framework of some practical general conception of philosophy viewed in a transcendental perspective. Below we shall very schematically examine some of the main arguments upholding this claim.

18 Pound 2002: 30ff., passim .

• 19 It is common knowledge that in relation to concepts, Kant’s ideas of practical reason have a const (...)

28 The core argument leads us to once again consider the kind of totalisations that characterise the legal category and are expressed in its internal conceptions. They are essentially justificative totalisations. Given that the law is a practical, normative category, legal concepts are doctrinal concepts. Their main purpose as practical concepts is not only to guide action (the “technical” aspect), but to do so in a justifiable fashion. Legal concepts are linked to the practice of arguing and providing reasons in regard to legal decisions, of justifying action ( ex post and ex ante ). This means that what we have called the ideas that shape legal practice until now, are actually “ideals” 18 or, in Kantian terms, “regulative ideas”. 19 That is, they are values .

20 Alexy 2005: 45ff.

21 Waldron 1994: 527ff.

22 Raz 1990: 187.

23 Dworkin 2006: 35.

29 Values are the true transcendental building blocks of legal practice. This could be asserted after examining any inventory of the fundamental legal concepts, such as “person”, “action”, “rule”, “illicit”, “sanction”, “responsibility”, “right”, “duty”, etc., which represent a categorisation of the basic notions of practical philosophy (the traditional philosophia practica universalis ). Dealing with these essentially justificatory concepts in legal practice is what makes it necessary to draw from conceptions (which we called “materials” above) that are capable of supplying versions or interpretations of them in terms of conglomerates of foundational value judgements. These evaluations are at the very core of the legal method, which actually starts with the assumption of the “openness” or “indeterminacy” of the legal system and the need to “close” it or determine its content by referring to practical justifications of this kind. 20 Legal concepts are always elisions of value judgements. 21 The entire technical-practical complex of the law —primarily made up of rules as elemental instrumental units of the jurist’s work— is the outcome of deliberations and balances between values, and thus the practical application of the concepts captured in them is inseparably linked to the underlying value judgements and the need to rationally ground them in objective validity. The disagreements which lie at the origin of rules —as “expressions of compromises, of judgements about the outcome of conflicts” 22 — are constantly reproduced in their process of application, so that determining the “grounds of law” in each new case requires making explicit the values at stake, and ultimately their ethical-political foundations. Hence, it is essential to gain some conception of the principles (which are the normative expression of values) and to wholesale reconstruct the law involved in the resolution of each case in legal practice, even if this may only seem particularly visible in difficult cases or in legal issues that typically spark moral disagreements (abortion, euthanasia, gay marriage, surrogate motherhood, etc.). All legal issues, including easy cases, are questions of principle in this sense, that is, questions of value. 23

24 Atienza 2013: 284.

25 Aristotle, Nicomachean Ethics : V.

30 It is therefore necessary, in Atienza’s words, “to resort to a moral and political philosophy that allows some order to be articulated or established among the different kinds of justifying reasons that converge in law”. 24 This philosophy encompasses combinations of ideas on the common good, the general interest, human rights, collective goals or purposes, etc. and is ultimately resolved in some kind of foundation of the basic ethical and moral values (freedom, equality, dignity) and the political values which justify power and authority (a conception of democracy, of the rule of law, etc.). That is, it is resolved in what, we have called since Aristotle, 25 justice as a basic schema to articulate ideas around what is good and right in distribution and reparation in both the public and private matters that make up the territorium of human praxis. In this way, the justificative dimension of law connects it internally , from its own practice, to philosophical-moral and philosophical-political conceptions. It leads to general or omni-comprehensive systems of practical philosophy (with an orientation that can be liberal, utilitarian, communitarian, deontological, social, etc.) from which, in turn, the orientation and normative critique of those legal conceptions take place. These normative functions essentially correspond to the academic philosophy of law, the natural middle ground between law and practical philosophy, which is then shown to be a practical undertaking. The philosophy of law is a practical philosophy that follows the law, like its shadow. The values it encompasses, as both transcendental underpinnings and ideas from practical philosophy simultaneously, serve as a bridge, allowing a back and forth movement between the two.

26 Rawls 1993: 212ff.

31 We could even claim that legal philosophy is that region (or “part”) of practical philosophy that enjoys a certain “primacy” over the others. After all, law is not only a place where political-moral values are realised and embodied (a decisively effective embodiment due to the fact that legal institutionalisation manages public coercion) and where these values thus gain a definitive justification, but also the place where moral philosophy and political philosophy converge on equal terms from their own transcendental perspectives. Indeed, legal-practical institutions appear to be their necessary landing place. They can play the role of a historical-cultural mesh necessary to make morality and political society possible, without which their values would simply disintegrate. Law represents not only a society’s ideological self-description but also its own political and moral self-justification, where all practical values are ultimately “personified”, that is, attributed to the community as a whole (a clear form of “totalisation”). Law is thus associated with the very idea of “public reason”. 26 This is a thread running throughout the history of practical philosophy from Aristotle to Kant, just to cite its two touchstones.

27 Dworkin 1986: 404ff.

32 We can thus understand the profound sense in which the genuinely philosophical perspective on law can be viewed as teamed with the notion of “critical totalisation”. It essentially has to do with the justificative purpose of law, which operates on the basis of practical values. The point is not only the prevalence of this justificative dimension of law over its technical or directive dimension, since the problems it deals with encompass conflicts and disagreements that are ultimately axiological and need to be resolved on equal terms. Nor should the practice of law be governed by a method that seeks to constantly construct and reconstruct the coherence or “integrity” of legal matters. Justifying (the legal method) would then appear as a complex interpretative action that effectively entails “totalising” every case by virtue of multiple criteria (relevance, description, applicability, truth, appropriateness, weighing, etc.) in order to integrate it into the legal system “as a whole” (Dworkin 1986: 400-1, 411), somehow recapitulating the entire set of technical instruments of positive law in each decision. The point is also, and above all, that this requires going beyond the legal category to reveal law as a precisely political-moral technique . Legal technique as a whole and each of the decisions made within it throughout its constant development (in this second reflective level on social practices) must appear as a justified practice that serves the values of justice and morality. “Inclusive” integrity, in turn, refers back to a “pure”, 27 aspirational integrity on whose terms law as an institution that realises values is justified; yet also, and more importantly, it is criticised if it does not.

28 Sen 2009.

33 And this is the reason why the problem of unjust law, of the validity of legal norms and decisions, is a transcendental problem that calls the whole legal category into question and labels some particular decisions as “flawed” or burdened by shortcomings (axiological and therefore legal) when they are inevitably shown to be unjust after all. This aspect is recognised in topoi like Antigone, Augustine’s magna latrocinia and “Radbruch’s formula”, which manifest the pretension for law to be correct (Alexy) or claim that it is a practical system that seeks moral authority (Raz). The essentially totalising and conflicting nature of the practical values involved in the legal institution —the values of justice or, more accurately, the demands of injustice 28 — are what make the concept of law draw from philosophy, and what makes legal philosophy a practical philosophy.

29 Nino 1994.

30 On the “logical primacy of the internal point of view of human practice”, see Nino 1994: 37, 47.

34 Justificative legal rationality thus rests upon a constant practical effort to connect or combine partes extra partes with respect to law. This practical process, far from reflecting a “pre-established harmony”, is essentially “open”, asymmetrical and controversial, which results both from the fact that legal practices must constantly adjust to the flow of first-degree social practices and from its own independent institutional logic as “technical” device. Parts of law interfere with parts of morality and with parts of politics in different ways, at different levels, and not always (if ever) harmoniously. 29 But the tensions among them must nonetheless be recomposed in a unifying justification in the guise of ultimate totalisations of the values involved. This includes the tensions that exist between the efficacy of power or authority and substantive validity; between justice and legal security; between dura lex, sed lex and summum ius, summa iniuria ; between the political limits of law and the aspirations of universal rights; between the sociocultural, idiosyncratic uniqueness of each legal community and the demands of universal critical morality; between the institutional values of legal technique (associated with the continuity of past operations, formal equality, specific interpretative patterns, etc.) and the substantive values of justice; between the very principles of justice that law encompasses and their necessary stabilisation through rules; between the rationality that governs the legal system and the inevitable presence of irrational decisions in its implementation. Only through different conceptions of the internal values of legal practice (as part of the different conceptions of law) can we reach any kind of single articulation of this essentially conflictive terrain which is capable of forging “overlapping consensus”, “reflective balances”, criteria of “reasonability”, “balancing” or “proportionality”, “incompletely theorised agreements”, etc. This is the result of interpretations that entail questioning the legal category as a whole in light of values, while it also leads to the restoration of the unity of practical reason around these values. This need to evaluatively interpret the legal category in terms of totality based on the entire practical realm explains that the doctrinal concept of law has epistemological priority over all other concepts (sociological, economic, logical, etc.). 30 It also determines that the concept of law is an “essentially contested concept” or an “interpretative concept”, that is, a philosophical concept, an idea . And ultimately, this is also the reason there must be an uninterrupted, substantial continuity between the two.

31 Kelsen 1962: 131.

32 Hart 1987: 37ff.

• 33 See a clear and early formulation of both theses in Bobbio 1990b. The general theory of law is fac (...)

35 Now the sense of the thesis that legal philosophy cannot be understood as an adjectival or genitive philosophy may finally be clearer, too. This would precisely be a philosophy in which the values that concern law are not considered as transcendental. That is, they are viewed either as values purely external to legal rationality (belonging to moral or political philosophy but not to legal philosophy) or as values that are purely internal to the legal institution (not connected to morality and politics, that is, not transcendental). A clear formulation of both ideas can be found in Kelsen, when he states that “given that justice is a postulate of the moral, the philosophy of law is a branch of moral or ethical philosophy”. In other words, as long as it is concerned with values, philosophy of law would no longer refer to law. Thus, the key discipline regarding law is not a “legal philosophy” but a scientific “general theory of law” the purpose of which is descriptive, not normative. According to Kelsen, “the subject matter of this theory is the law as it actually is , that is, positive law, both national and international”, and its purpose, in turn, “consists of analysing the structure of positive law and setting the fundamental notions in the knowledge of this law”. 31 This idea is what has prevailed in the core currents of contemporary legal positivism, in its zealous attempt to separate what law is from what it should be, of isolating “conceptual issues” from “normative issues”. Hart even considers this the nuclear positivist thesis. 32 Indeed, legal positivism is the most emblematic (though not the only) embodiment of the viewpoint that assumes that the substantive values of law are segregate from the field of legal philosophy or that reduces them to strictly internal values (technical or categorical: primarily the formal or institutional values of law). Both assumptions entail the liquidation of the philosophy of law, the former because it would not be properly a legal philosophy but a moral or political philosophy, and the latter because its study would no longer be philosophical but rather scientific (or technical), as legal concepts could be reconstructed, it is said, away from any justificative value judgement. 33

34 Ferrajoli 2008: 28ff., 45, 49ff.

36 Thus, Ferrajoli, for example, tells us that referring to the values of justice would mean adopting an external point of view in relation to law: “the point of view of the political, which views positive law and the legal institutions of the diverse legal orders as a historical, political or social product which must be constructed (or demolished), defended (or criticised) and conserved (or transformed)”. This external standpoint, according to Ferrajoli, “assumes the values that design and project the external, ethical-political ought of law and that allow formulate judgments on the greater or lesser degree of justice (or injustice) of the law”. Now, “legal theory is situated on a completely different level, as a formal theory limited to analysing technical-legal concepts and their syntactic relationships”. This theory is “formal” or structural, essentially logical or scientific in nature, a “meta-theory” of legal concepts that takes them as “ideologically neutral, that is, independent of any value system internal or external to the legal systems studied”. 34 Therefore, the theory of law seeks to be the true discipline that replaces legal philosophy scientifically —categorically.

35 Guastini 2011: 7ff., 9.

36 Raz 1995: 235ff.

37 Marmor 2011: 129ff.

37 Expressed in other words but with the same outcome, legal philosophy is, according to Guastini, just a “philosophy of jurisprudence”, a “merely conceptual” analysis of jurists’ discourse, the purpose of which is “to model the concepts which can describe the law”, but not to model the law itself, “in no way influencing the identification of the content of law itself, which, by hypothesis, is not in dispute when debating in philosophy of law”. 35 In sum, the values of law are only identified as attributed social facts, not as values whose recognition entails a practical compromise which turns any discourse on them into a normative discourse and, in particular, the discourse of legal philosophy. 36 This compromise would involve no more than epistemic values, excluding substantive ones; the goal would simply be to describe evaluations, those which are present in the justification of law, without this then requiring a justificatory or normative theory. The values that make law a normative and justificative institution are only transferred theoretical or epistemological values, but not necessarily practical values (either shared or rejected). 37 Legal philosophy is not normative or practical in a strong justificatory sense, but a theoretical (“conceptual” or exempt from normativity) undertaking.

38 This is a philosophically recognised idea from Aristotle’s epieikeia to Hart’s open texture .

38 It seems obvious, however, that philosophical criticism on this standpoint can only be made in epistemological and ontological terms, as mentioned above. On the one hand, this criticism must show that the philosophical attempt of conceptually reconstructing legal validity as stripped of value is based on an erroneous understanding of the epistemology of the legal-normative discourse and its conditions of scientific validity. The legal category is not scientific precisely because legal concepts —the concepts of legal dogmatics, of the “general theory of law” and its successor, legal theory viewed as “science”— are structurally evaluative and grounded upon stances that are irremediably moral and political. Therefore, there is no legal science capable of epistemically (“theoretically”) distancing or freeing itself from the practical compromise with the substantive values of law. Any metalinguistic or metatheoretical discourse that deals with the legal concepts in which these values are captured performs functions internally to the object language of legal practice as it belongs to the grammar of this praxis. These are functions of legitimation or criticism that make it more a meta-language of law (i.e, internally generated from the internal or participant point of view in order to conceptually “close” the legal category) than about law. But neither the technical nor the scientific (doctrinal) legal concepts manage to render the legal category “closed” or self-referential; on the contrary, their practical dimension determines that legal normativity has a permanently open structure 38 and necessarily refers to other moral and political categories or notions. The fact that the legal category is not strictly scientific or technical but rather a doctrinal practice in no way diminishes its rationality; it only means that it is a practical, political-moral kind of rationality whose concepts can only be articulated and “closed” in a unitary way by making use of philosophical ideas dealing with political-moral values. Is such an evaluatively committed character of legal rationality what determines then that, despite its categoricity, it is neither scientific nor can it be qua tale scientifically reconstructed.

39 Ferrajoli 2008: 57ff.

40 Postema 1998.

• 41 On the priority of the material (that is, practical) conception of legal argumentation over the fo (...)

39 Thus, the “pragmatics” of legal theory, Ferrajoli tells us, is about the very principles of law (that is, its values) viewed as the “logic” guiding it, but as iuris tantum and not iuris et de iure principles, given that the nomodynamic structure of law, subjected to divergences and historical contingencies, will not always make it possible for them to be satisfied. 39 This is simply another way of saying that law is a practical undertaking whose purpose is to totalise these values, which remain in conflict inside and outside the legal category and should therefore not solely be viewed as epistemic (logical), purely descriptive and analytical, that is, theoretical values. They involve practical engagement in substantive conceptions of justice articulated through different combinations and specifications of those principles. Only in this way do they allow for the ethical-political criticism of established law, a kind of criticism that is then both internal and external, that is, transcendental or philosophical. The pragmatics of legal theory is yet another dimension of legal practice: legal theory is not a theoretical discipline according to any minimally rigorous definition of the term, 40 and this is the fundamental meaning behind the statement that legal philosophy is a practical philosophy. The set of epistemological ideas upon which legal philosophy critically examines legal rationality in argumentative terms —ideas such as “interpretation”, “correction”, “logic”, “argument”, “truth”, “objectivity”— reveals the primacy of the justificatory dimension of legal praxis and its internal connection to moral and political value judgments. 41

42 Waldron 2001.

40 On the other hand, the ontological consequences of what has been said so far can only point to the fact that the “reality” of the law is a practical undertaking anchored in a political or institutional system of authority, which simultaneously tries to seek moral validity or justification. This means that it supplies reasons whose scope necessarily goes beyond the contingency of any social “fact” or source, any convention or ideology, and links up with values that should be viewed as objective, historical-culturally developed ideas , which any kind of legal discourse has to engage in by incorporating a claim to practical correctness. These ideas (which are primarily the ideals of justice and rationality that constitute legal argumentative practice, themselves at the root of the philosophical dialectic of classical Greece) show that what law “should be” can thus not be uprooted from its reality or being, but is rather internal to it, as are the conceptions about it operating within legal rationality. This not only renders philosophically inconsistent any axiological scepticism or radical criticism which strives to deny the objectivity or validity of the evaluative reasons of law by reducing values to facts (e.g. to ideologies, social conventions or mere disguises of the strategic mechanisms of power); it also makes legal positivism itself particularly self-destructive and blind to the true practical nature of law, in that it strives to be compatible (like “ethical positivism”) with any kind of moral objectivism. 42 After all, the thesis of the separation or segregation of law from moral values would itself be a normative or moral thesis that rests upon what it is trying to deny: the fact that moral values are not only present but constitutive of the concept of law. They could no longer be seen as merely “conceptual”, in the sense of “epistemic” or “attributed” values, but instead as substantive practical values. This entails a normative conception of legal theory and therefore an understanding of this as practical philosophy.

• 43 Dworkin is far and away the legal philosopher who has best captured this point, when he claims tha (...)

41 Hence, finally, the discourse of legal values —legal axiology— cannot be viewed as a third discourse or a part of the philosophy of law independent from the discourse on the concept of law (legal ontology) or its forms of knowledge (legal epistemology), as it is commonly viewed. This would be nothing other than an inherited prejudice from the positivistic view of law, and not only a prejudice but also a hindrance. The conception that is most coherent with the true position that law occupies within the political-moral space —precisely because values are so central to it—, that is, the post-positivistic conception which we call constitutionalism or the argumentative view of law, means transcending this methodical view of free-value positivism and instead envisioning the philosophy of law as a practical philosophy integrated in moral and political philosophy. The universality of the concept or knowledge of law (and therefore, the universality of legal philosophy) cannot be encapsulated within a single categorical enclosure, as if it were a “natural”, “criterial” or “semantic” (that is, scientific) concept. The idea of constructing a universal concept of law has been present in the history of legal philosophy since ancient times (from the Greek koinos nomos and the Roman ius gentium to mediaeval natural law and modern rational law or the positivistic “general theory of law”), but it has always been a truly philosophical project. The concept of law is an “interpretative concept” constructed upon ideas and conceptions of a philosophical nature which are present in legal practice and in the doctrinal concepts of law methodologically linked to its internal justificative point of view —to jurist’s prudentia iuris . 43 What is truly universal in law should thus be values themselves understood as ideas that seek to be transcendental and from which it is possible to overtake (critically totalise) the contingent or particularist historical anchor of such justificative practice. The categoricity of legal institutions and norms is contextual, always fragmented into idiographic and idiorhythmic regional circles (national states, legal families, cultural traditions, etc.), because norms can be abstract objects but also individuals in the logical sense. Only values would be susceptible to true universalisation, as they play their justificatory role in objective terms and so become the genuine ideas that make legal practice a rational, universalisable practice. Law will lose what actually makes it rational if these ideas cease to be present. And inasmuch as legal philosophy strives to do without them, to present itself as more “technical” or more “scientific”, it will put at risk its own claim to universality, which belongs not to a theoretical but a practical philosophy.

— Acknowledgments. — This paper is part of the Research Project “Development of an Argumentative Conception of Law” (“Desarrollo de una concepción argumentativa del Derecho”, DER2013-42472-P) supported by the Spanish Ministry of Economy and Competitivity.

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Luigi FERRAJOLI, 2008: La Teoría del Derecho en el sistema de los saberes jurídicos. La Teoría del Derecho en el paradigma constitucional . Eds. Luigi Ferrajoli, José Juan Moreso and Manuel Atienza. Madrid: Fundación Coloquio Jurídico Europeo. 25-69.

Riccardo GUASTINI, 2011: La sintassi del diritto . Torino: Giappichelli.

Herbert L. A. HART, 1987: Comment. Issues in Contemporary Legal Philosophy . Ed. R. Gavison . Oxford: Clarendon Press. 35-42.

Werner JAEGER, 1946: Paideia. The Ideals of Greek Culture [1933]. Vol. I: Archaic Greece. The Mind of Athens . Transl. G. Highet. Oxford: Basil Blackwell.

Werner JAEGER, 1982: Alabanza de la ley. Los orígenes de la filosofía del Derecho y los griegos [1947]. Trans. A. Truyol. Madrid: Centro de Estudios Constitucionales.

Immanuel KANT, 1968a: Die Metaphysik der Sitten [1797]. Kants Werke Akademie-Textausgabe . Berlin: Walter de Gruyter & Co. 1968. Vol. VI. 203-494.

Immanuel KANT, 1968b: Der Streit der Facultäten [1798]. Kants Werke Akademie-Textausgabe . Berlin: Walter de Gruyter & Co. 1968 . Vol. VII. 1-113.

Hans KELSEN, 1962: Qu’est-ce que la Philosophie du Droit?. Archives de Philosophie du Droit 7 (1962). 131.

Andrei MARMOR, 2011: Philosophy of Law . Princeton: Princeton University Press.

Thomas NAGEL, 1997: The Last Word . New York: Oxford University Press.

Carlos Santiago nino, 1994: D erecho, moral y política . Barcelona: Ariel.

Michael OAKESHOTT, 2007: The Concept of a Philosophical Jurisprudence [1938]. The Concept of a Philosophical Jurisprudence: Essays and Reviews 1926-51. [Selected Writings. Vol. III]. Ed. L. O´Sullivan, Exeter: Imprint Academic. 154-183.

Gerald POSTEMA, 1998: Jurisprudence as Practical Philosophy. Legal Theory 4 (1998). 329-357.

Gerald POSTEMA, 2015: Jurisprudence, the Sociable Science. Virginia Law Review 101 (2015) 4. 869-901.

Roscoe POUND, 2002: The Ideal Element in Law [1958]. Indianapolis: Liberty Fund, Inc .

John RAWLS, 1993: Political Liberalism . New York: Columbia University Press.

John RAWLS, 1994: La idea de una razón pública. Isegoría 9 (1994). 5-40 (transl . A. Domenech).

Josep RAZ, 1990: Practical Reason and Norms . New York: Oxford University Press.

Josep RAZ, 1995: Ethics in the Public Domain. Essays in the Morality of Law and Politics . Oxford: Clarendon Press.

Josep RAZ, 2009: Between Authority and Interpretation. On the Theory of Law and Practical Reason . New York: Oxford University Press .

Alf ROSS, 1959: On Law and Justice . Berkeley: University of California Press.

Manuel SACRISTÁN, 1968: Sobre el lugar de la Filosofía en los estudios superiores . Barcelona: Nova Terra.

Amartya SEN, 2009: T he Idea of Justice . Cambridge, Mass.: Harvard University Press .

Jean-Paul VERNANT, 1985: Mito y pensamiento en la Grecia antigua [1965]. Transl. J. López. Barcelona: Ariel.

Theodor VIEHWEG, 1991: La Filosofía del Derecho como investigación básica [1961]. Tópica y Filosofía del Derecho . Transl. J. M. Seña. Barcelona: Gedisa. 29-51.

Jeremy WALDRON, 1994: Vagueness in Law and Language: Some Philosophical Issues. California Law Review 82 (1994) 3. 509-540.

Jeremy WALDRON, 2010: Normative (or Ethical) Positivism. Hart’s Postscript. Essays on the Postscript to The Concept of Law. Ed. Jules Coleman. Oxford: Oxford University Press . 410-433.

3 However, “transcendentality” would then have not an aprioristic or metaphysical meaning (as it does in Kant) but a meaning relative to a posteriori recurrence of practical human rationality (Bueno 1970; 1999). A similar perspective can be found in Nagel 2000.

4 “What is there to be said about the ‘nature’ of legal phenomena beyond that which emerges from the doctrinal study of law, which has these very phenomena as its subject?” (Ross 1959: 6).

5 “It is understood that the preference for the works of jurists who raise themselves to philosophy more than for those of them who lower themselves to the world of law reveals the preference for one method or, more accurately, for a certain working style which is easier to find in the work of the former than the latter: What characterises this working style is the primacy attached to analysis over synthesis, a primacy grounded upon the conviction that even though analysis and synthesis are necessary steps in all inquiry, analysis without synthesis (which is what philosopher-jurists are often blamed for) is preferable to synthesis without analysis (which is a common vice among jurist-philosophers), because the former at least seeks good materials to construct, and because the latter only builds houses of sand where no one wants to live. ” (Bobbio 1990a: 96).

6 Bobbio’s core argument is that even though it may be more analytical than synthetic and have philosophical aspirations that are not rigorously systematic, jurists’ philosophy of law is a reflection developed from empirical, positivistic materials precisely because it comes from jurists who are working “grounded” in law, whereas philosophers’ philosophy of law is an eminently dogmatic, aprioristic philosophy ( ancilla philosophiae ), an “applied philosophy” of systems and doctrines extrinsic to the field of law in which the general problems of law are studied not by dealing with legal experience but from those prior systems, thus giving rise to speculative and rcductionist constructs, which fully justifies jurists’ traditional mistrust of philosophy.

8 Judging from the names he mentions (Hobbes, Ihering, Gény, Ehrlich, Kelsen, Kantorowicz, Ross, Hart), we can glean that Bobbio’s jurists’ philosophy is primarily affiliated with legal positivism, while as prototypes of the philosophers’ philosophy he cites Thomism or Hegelianism. As is well known, Bobbio was also very influenced by logical positivism in his understanding of the relations between science and philosophy. Otherwise, his direct adversary in this 1962 paper —and this explains its polemical, antimetaphysical purposes— is the Italian idealist-Hegelian legal philosopher Giovanni Gentile, “an extreme example of philosophical radicalization and hipostatization” (Bobbio 1990a: 96).

9 A similar three-way division can be found in Oakeshott 2007 when he talks about legal philosophy as an “applied philosophy”, as an “ a priori natural law” and as a “philosophy of jurisprudence”. They stand in opposition to genuine “philosophical jurisprudence”.

10 Some people have even dismissed positivistic legal philosophy with an analytical orientation as “scholastic” (Dworkin 2006: 213) or have condemned its distance from the practical interests of jurisprudence (Cotterrell 2014; Postema 2015). These are the same disparaging attributes of which Bobbio accuses “philosophers’” philosophy of law.

12 By “dogmatic philosophy” I mean any kind that envisions itself not as a reflective, secondary knowledge but as an original, radical or first-order one, a kind of substantive, previous knowledge that does not draw from sources outside itself but instead is “applied” top-down, as a system of “truths”, on contents or matters that in themselves are merely subsequent and secondary (a “general function” that is realised or verified ex post in “monotonous” variables). Dogmatic philosophy is any purely academicist or professorial philosophy that presents itself as a closed, finished doctrine and claims to be founded upon timeless or ahistorical principles; it is not embedded within the historical, practical and scientific present but instead consists of fundamental truths which are exempt from categorical realities, situated above or apart from them like a philosophia perennis .

13 This can be seen, for example, in Raz’s distinction between the “concept” and the “nature” of law (Raz 1995: 195ff.; 2009: 17ff., 91ff.).

15 The formation of classical philosophy is closely linked to the discussion against sophists and orators around the concept of law ( nomos ) and the ideals of justice ( dike , dikaiosyne , to dikaion ). From here not only arises the logic, the dialectic and the rhetoric, within the context of the polis democracy based on the discursive technique of logos as public reason ( isegoria , isonomia ), but the entire political and ethical philosophy of Plato and Aristotle. See e.g. Jaeger 1946: 99ff.; 1982. This makes practical philosophy the true “first philosophy” (Baracchi 2008). But it is also deeply connected to the second main source of philosophy —the emergence of scientific, universal knowledge with mathematics—, since the geometrical conception of cosmos pursues, in Vernant’s words, a “rationalization of political relations” that seeks “less to put the city in harmony with the sacred order of the universe than to achieve precise political purposes” (Vernant 1985: 193ss., 356). A similar combination of practical philosophy and scientific rationalism will repeat itself again in Modern Age and Enlightenment philosophy within the context of the modern state.

17 Thus Bobbio himself assumes this when he ends his paper by redirecting the opposition between philosophers’ and jurists’ legal philosophy to a last philosophical choice (“a difference between two modes of philosophizing”) between monism vs . pluralism and rationalism vs . empiricism (Bobbio 1990a: 98), being the jurists more inclined towards the second option within these dichotomies —that is, as said, giving priority to analysis over synthesis. It should be noted, however, that for Bobbio this does not necessarily imply a sharp analytical fragmentation of legal philosophy in the specialized subdisciplines he distinguishes (legal theory, theory of legal science and theory of justice). For in the last paragraph of his paper he states that a “unitary discipline” would be the best way for legal philosophy to play its practical, critical role (a role pretty close, indeed, to a “critical totalisation”): “The task of the philosophy of law, from the didactic point of view, is to break the dikes that keep the traditional legal disciplines in the artificial reservoir of a positive system. This objective can be better fulfilled by mining the dam on several sides at a time” (Bobbio 1990a: 99).

19 It is common knowledge that in relation to concepts, Kant’s ideas of practical reason have a constitutive or “categorical” use, not a regulative use with the purpose of providing them with unity or totality.

33 See a clear and early formulation of both theses in Bobbio 1990b. The general theory of law is factual, formal, scientific, non-philosophical and deals exclusively with the concept of law, whereas the philosophy of law is evaluative, material and confined to the idea of justice as a matter of value and ideological stance. “Filosofia del diritto nel senso proprio è solo la teoria della giustizia” (Bobbio 1950: 96).

41 On the priority of the material (that is, practical) conception of legal argumentation over the formal (logic) and pragmatic (dialectical and rhetorical), see Atienza 2013.

43 Dworkin is far and away the legal philosopher who has best captured this point, when he claims that constitutional judges make philosophical decisions, not only occasionally before a particular hard case (i.e., a case that questions the foundations), but as a matter of routine, given that the concepts they use in their decisions (“responsibility, meaning, intention, equality, freedom and democracy, for instance”) are “hard concepts” (i.e. ideas) that require deploying an argumentative or reflective practice on some of the deeper issues of political morality (Dworkin 2010: 22, 29, 33).

Electronic reference

Jesús Vega , “ Legal philosophy as practical philosophy ” ,  Revus [Online], 34 | 2018, Online since 25 September 2017 , connection on 13 June 2024 . URL : http://journals.openedition.org/revus/3859; DOI : https://doi.org/10.4000/revus.3859

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• Stanford Encyclopedia of Philosophy - The Nature of Law
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philosophy of law , branch of philosophy that investigates the nature of law , especially in its relation to human values, attitudes, practices, and political communities . Traditionally, philosophy of law proceeds by articulating and defending propositions about law that are general and abstract—i.e., that are true not of a specific legal system at a particular time (e.g., the United Kingdom in 1900) but of all legal systems in the present or perhaps of all laws at all times. Philosophy of law often aims to distinguish law from other systems of norms, such as morality ( see ethics ) or other social conventions. Views about the nature of law often depend upon, and occasionally have contributed to, answers to some of the most-fundamental philosophical questions—for example, regarding the foundations of morality, justice , and rights ; the nature of human action and intention ; the relations between social practices and values; the nature of knowledge and truth ; and the justification of political rule ( see political philosophy ). The philosophy of law is therefore an integral part of philosophy more generally.

Whereas law as a means of governance of human communities dates back to at least 3000 bce in ancient Egypt , sustained and systematic philosophical reflection on its nature for which there is surviving evidence began only in the late 5th century bce in ancient Greece and nearby areas of the Mediterranean, not long after the birth of Western philosophy itself. From that point onward, a more or less continuous history of such reflection can be traced up to the present day. As is true with the history of philosophy more generally, one can observe over the centuries changes not only in the theories set forth but also in the central questions about law that such theories were meant to answer.

Although every philosophical theory is in part a product of the time, place, and culture in which it is developed, the philosophy of law is parochial in an additional sense. Philosophical speculation about the nature of law not only is very often shaped by the politics of the time and place of a given theorist but is also carried on with a specific sort of legal system and legal culture in view. The latter fact is important, as the kinds of legal systems in Europe and the Anglophone world have varied widely through the last several millennia. Although the shape and structure of those systems cannot be discussed in any detail here, it should nonetheless be noted that a robust understanding of each of the major theories and texts in the history of philosophy of law requires some acquaintance with the legal systems of the cities and states in which a given theory was developed. For example, the centrepiece of the legal system of Aristotle’s Athens was a representative legislative body, the Ecclesia , in which a wide variety of political disputes were debated and addressed by statute, while its court system was, though important, very rudimentary by modern standards (it was governed by largely customary procedural rules and administered by ordinary citizens, as there were no judges, lawyers, or other legal professionals during that period). As a result, Aristotle theorized about law primarily on the model of general rules of action enacted by legislation and revisable by direct vote or other plebiscitary means. To take a different example, starting in the 17th century many British (and later other Anglophone) philosophers of law argued for the central importance of judicial institutions for the very existence of a legal system and debated the idea of legal reasoning as a distinct sort of deliberative activity. More recently, increasing attention has been paid to the related question of how the language of the law is to be correctly interpreted. Some theorists, beginning in the early 20th century, even found it fruitful to think about the nature of law primarily from the point of view of legal professionals such as judges or lawyers. That development is surely to be at least partly explained by the fact that those theorists reflected on law almost exclusively within advanced common law systems—i.e., those legal systems found throughout the Anglophone world (and now beyond) in which specially trained lawyers argue on behalf of the interests of clients in court and elsewhere and in which judges often play a quasi-legislative role in fashioning legal rules in the form of precedents, which are binding on later courts for the purposes of deciding future cases.

The abstract concept of law is acknowledged, though not discussed, in the poems of Homer and Hesiod in the 8th–7th century bce . In the Greek histories and literature of the 6th and 5th centuries bce , however, one finds the first articulation of ideas about law that have had enduring influence in the West: that law is a kind of command or prohibition with regard to what its subjects ought to do and that law is often accompanied by at least the threat of punishment or coercion by the state. Herodotus (born about 484 bce ), in his History of the Greco-Persian Wars , records a Spartan king remarking to the king of Persia that the Greeks “are free, yet not wholly free; law is their master, whom they fear much more than your men fear you. They do whatever it bids.” The historian Xenophon ( c. 430– c. 350 bce ) relates in his Memorabilia a likely apocryphal conversation between a young Alcibiades and his guardian, the great Athenian statesman Pericles , in which the latter declares that “whatever the sovereign power of the state, having deliberated, enacts and directs to be done is known as law” and denies that mere compulsion exerted by a tyrant is sufficient to qualify as law. The great dramatist Sophocles , in his tragedy Antigone , first made salient the important idea that the requirements of law and morality may conflict. In the play, King Creon orders the body of Antigone’s brother to remain unburied as a posthumous punishment for treason . Out of familial duty, Antigone flouts the order and buries the body, thereby herself risking punishment by death. She rejects the king’s legal authority, saying that even he “could not override the unwritten and unfailing laws given us by the gods.”

But it is Plato (428/427–348/347 bce ), writing during the decline of the Athenian empire, who was the first to advance philosophical claims about the nature of law. The relevant Greek term, nomos , varied widely in meaning across contexts , often referring simply to convention or practice. But by Plato’s time it had acquired the more-specific sense of a statute or a proclaimed or written directive that established a standard for human action. In his dialogue Crito , Plato fictionally cast his teacher, Socrates , imprisoned and sentenced to death (for impiety and corrupting the young), as faced with a choice between accepting the death penalty and escaping, thereby disobeying the law. In the dialogue Socrates makes the provocative argument, on behalf of the laws of Athens, that since he has received the benefits and protections of living under law for his entire life and has never left the city out of protest, he is obligated either to obey its laws or to persuade the state that they should not be enforced against him. Since he has failed (at his trial) in the latter task, he must respect the laws by obeying their commands, regardless of their content.

Plato’s dialogue Crito is the origin of several enduring ideas in the philosophy of law, such as that the law by nature claims authority over its subjects and that the very relationship between law and its subjects somehow gives rise to an obligation of obedience. Plato’s later work makes scattered reference to law but fails to articulate a robust philosophy of law in the modern sense; what is thought to be his last work, Laws , contains many specific proposals for reforming the laws of his time but curiously fails to grapple with broader philosophical questions.

A generation later, Plato’s student Aristotle (384–322 bce ) gave more-systematic expression to a number of influential ideas about law. Aristotle famously said that humans are “political animals,” meaning that they naturally organize themselves into distinct sorts of communities, the largest of which is the city, or city-state (in Greek, the polis ). Cities are characterized by their politeia , a word that is often translated as “constitution” but in fact refers to any general way in which a large human community may organize itself. Law, Aristotle said, is “a sort of order” and thus provides a comprehensive framework of rules and institutions through which a society is constituted . A law (e.g., a statute) is by nature universal in form: it is a standard of conduct that applies generally, in respect of both the classes of persons and the types of conduct it governs. Because of its universal nature, a law can sometimes fail to apply, or apply only indeterminately, to a novel case unforeseen by the legislator. The problem here, Aristotle said, is not in the law or in the lack of foresight by the lawmaker but rather in the “nature of the case.” In such cases, what is required is a corrective exercise he called “equity,” which involves speculating about how the deficient law would have applied had the lawmaker considered the novel case and then applying the law accordingly.

Aristotle was also the first to articulate what has come to be known as the ideal of the rule of law . He shared the common Greek view that, as a general principle, law had a share in eternal divine wisdom. As such, it was an instrument by which to constrain the exercise of political power, particularly that of tyrants, whose policies represented only their own interests and not the good of the community. On the (even by then) age-old debate as to whether the best law or the best person should rule a city, Aristotle’s position was clear: “He who asks law to rule is asking God and intelligence and no others to rule, while he who asks for the rule of a human being is importing a wild beast too.…Law is intelligence without appetite.”

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This series reflects and fosters the most original research currently taking place in the study of law and legal theory by publishing the most adventurous monographs in the field as well as rigorously edited collections of essays. It is a specific aim of the series to traverse the boundaries between disciplines and to form bridges between traditional studies of law and many other areas of the human sciences. Books in the series will be of interest not only to philosophers and legal theorists but also to political scientists, sociologists, economists, psychologists and criminologists.

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33 results in Cambridge Studies in Philosophy and Law

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Common Law Theory

• Douglas E. Edlin
• Published online: 17 September 2009 Print publication: 22 October 2007
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• View description In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world.

Legal Ethics and Human Dignity

• David Luban
• Published online: 22 September 2009 Print publication: 13 September 2007
• View description David Luban is one of the world's leading scholars of legal ethics. In this collection of his most significant papers he ranges over such topics as the moral psychology of organisational evil, the strengths and weaknesses of the adversary system, and jurisprudence from the lawyer's point of view. His discussion combines philosophical argument, legal analysis and many cases drawn from actual law practice, and he defends a theory of legal ethics that focuses on lawyers' role in enhancing human dignity and human rights. In addition to an analytical introduction, the volume includes two major previously unpublished papers, including a detailed critique of the US government lawyers who produced the notorious 'torture memos'. It will be of interest to a wide range of readers in both philosophy and law.

A Common Law Theory of Judicial Review

• The Living Tree
• W. J. Waluchow
• Published online: 09 July 2009 Print publication: 25 December 2006
• View description In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.

Truth, Error, and Criminal Law

• An Essay in Legal Epistemology
• Larry Laudan
• Published online: 05 June 2012 Print publication: 05 June 2006
• View description Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering the first integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial.

Natural Law in Jurisprudence and Politics

• Mark C. Murphy
• Published online: 10 March 2010 Print publication: 13 March 2006
• View description Natural law is a perennial though poorly represented and understood issue in political philosophy and the philosophy of law. In this 2006 book, Mark C. Murphy argues that the central thesis of natural law jurisprudence - that law is backed by decisive reasons for compliance - sets the agenda for natural law political philosophy, demonstrating how law gains its binding force by way of the common good of the political community. Murphy's work ranges over the central questions of natural law jurisprudence and political philosophy, including the formulation and defense of the natural law jurisprudential thesis, the nature of the common good, the connection between the promotion of the common good and requirement of obedience to law, and the justification of punishment.

Punishment, Compensation, and Law

• A Theory of Enforceability
• Mark R. Reiff
• Published online: 15 August 2009 Print publication: 11 July 2005
• View description This book is the first comprehensive study of the meaning and measure of enforceability. While we have long debated what restraints should govern the conduct of our social life, we have paid relatively little attention to the question of what it means to make a restraint enforceable. Focusing on the enforceability of legal rights but also addressing the enforceability of moral rights and social conventions, Mark Reiff explains how we use punishment and compensation to make restraints operative in the world. After describing the various means by which restraints may be enforced, Reiff explains how the sufficiency of enforcement can be measured, and he presents a unified theory of deterrence, retribution, and compensation that shows how these aspects of enforceability are interconnected. Reiff then applies his theory of enforceability to illuminate a variety of real-world problem situations.

Is There a Right of Freedom of Expression?

• Larry Alexander
• Published online: 07 January 2010 Print publication: 30 May 2005
• View description In this provocative book, Alexander offers a sceptical appraisal of the claim that freedom of expression is a human right. He examines the various contexts in which a right to freedom of expression might be asserted and concludes that such a right cannot be supported in any of these contexts. He argues that some legal protection of freedom of expression is surely valuable, though the form such protection will take will vary with historical and cultural circumstances and is not a matter of human right. Written in a clear and accessible style, this book will appeal to students and professionals in political philosophy, law, political science, and human rights.

Crimes against Humanity

• A Normative Account
• Published online: 23 November 2009 Print publication: 01 November 2004
• View description This book was the first booklength treatment of the philosophical foundations of international criminal law. The focus is on the moral, legal, and political questions that arise when individuals who commit collective crimes, such as crimes against humanity, are held accountable by international criminal tribunals. These tribunals challenge one of the most sacred prerogatives of states - sovereignty - and breaches to this sovereignty can be justified in limited circumstances, following what the author calls a minimalist account of the justification of international prosecution. Written in a clear and accessible style, this book should appeal to anyone with an interest in international law, political philosophy, international relations, and human rights theory.

Norms in a Wired World

• Steven A. Hetcher
• Published online: 05 June 2012 Print publication: 22 March 2004
• View description Social order is regulated from above by the law but its foundation is built on norms and customs, informal social practices that enable people to make meaningful and productive uses of their time and resources. Despite the importance of these practices in keeping the social fabric together, very little of the jurisprudential literature has focused on a discussion of these norms and customs. In Social Norms in a Wired World Steven Hetcher argues that the traditional conception of norms as rule-like linguistic entities is erroneous. Instead, norms must be understood as patterns of rationally governed behaviour maintained in groups by acts of conformity. Using informal game theory in the analysis of norms and customs, Hetcher applies his theory of norms to tort law and Internet privacy laws. This book will appeal to students and professionals in law, philosophy, and political and social theory.

Consent to Sexual Relations

• Alan Wertheimer
• Published online: 04 March 2010 Print publication: 18 September 2003
• View description When does a woman give valid consent to sexual relations? When does her consent render it morally or legally permissible for a man to have sexual relations with her? Why is sexual consent generally regarded as an issue about female consent? And what is the moral significance of consent? These are some of the questions discussed in this important book, which will appeal to a wide readership in philosophy, law, and the social sciences. Alan Wertheimer develops a theory of consent to sexual relations that applies to both law and morality in the light of the psychology of sexual relations, the psychology of perpetrators, and the psychology of the victims. He considers a wide variety of difficult cases such as coercion, fraud, retardation, and intoxication. We can all agree that 'no' means 'no'. This book suggests that the difficult question is whether 'yes' means 'yes'.

Beyond Comparison

• Sex and Discrimination
• Timothy Macklem
• Published online: 05 June 2012 Print publication: 02 June 2003
• View description In Beyond Comparison: Sex and Discrimination Timothy Macklem addresses foundational issues in the long-running debate in legal, political and social theory about the nature of gender discrimination. He takes the highly original and controversial view that the heart of discrimination lies not in the unfavorable comparisons with the treatment and opportunities that men enjoy but rather in a denial of resources and opportunities that women need to lead successful and meaningful lives as women. Therefore, to understand what women need we must first understand what it is to be a woman. By displaying an impressive command of the feminist literature as well as intellectual rigor, this work promises to be a milestone in the debate about gender equality and will interest students and professionals in the areas of legal theory and gender studies.

The Ethics of Deference

• Learning from Law's Morals
• Philip Soper
• Published online: 18 December 2009 Print publication: 24 October 2002
• View description Do citizens have an obligation to obey the law? This book differs from standard approaches by shifting from the language of obedience (orders) to that of deference (normative judgments). The popular view that law claims authority but does not have it is here reversed on both counts: law does not claim authority but has it. Though the focus is on political obligation, the author approaches that issue indirectly by first developing a more general account of when deference is due to the view of others. Two standard practices that political theorists often consider in exploring the question of political obligation - fair-play and promise-keeping - can themselves be seen as examples of a duty of deference. In this respect the book defends a more general theory of ethics whose scope extends beyond the question of political obligation to questions of duty in the case of law, promises, fair play and friendship.

Philosophy and the Law of Torts

• Edited by Gerald J. Postema
• Published online: 01 July 2009 Print publication: 19 November 2001
• View description When accidents occur and people suffer injuries, who ought to bear the loss? Tort law offers a complex set of rules to answer this question, but up to now philosophers have offered little by way of analysis of these rules. In eight essays commissioned for this volume, leading legal theorists examine the philosophical foundations of tort law. Amongst the questions they address are the following: how are the notions at the core of tort practice (such as responsibility, fault, negligence, due care, and duty to repair) to be understood? Is an explanation based on a conception of justice feasible? How are concerns of distributive and corrective justice related? What amounts to an adequate explanation of tort law? This collection will be of interest to professionals and advanced students working in philosophy of law, social theory, political theory, and law, as well as anyone seeking a better understanding of tort law.

The Moral Conditions of Economic Efficiency

• Walter J. Schultz
• Published online: 23 November 2009 Print publication: 18 June 2001
• View description In the late eighteenth century, Adam Smith significantly shaped the modern world by claiming that when people individually pursue their own interests, they are together led towards achieving the common good. But can a population of selfish people achieve the economic common good in the absence of moral constraints on their behavior? If not, then what are the moral conditions of market interaction which lead to economically efficient outcomes of trade? Answers to these questions profoundly affect basic concepts and principles of economic theory, legal theory, moral philosophy, political theory, and even judicial decisions at the appellate level. Walter Schultz illustrates the deficiencies of theories which purport to show that markets alone can provide the basis for efficiency. He demonstrates that efficient outcomes of market interaction cannot be achieved without moral normative constraints and then goes on to specify a set of normative conditions which make these positive outcomes possible.

The Theory of Contract Law

• New Essays
• Edited by Peter Benson
• Published online: 05 October 2009 Print publication: 05 February 2001
• View description Although the law of contract is largely settled, there appears to be no widely-accepted comprehensive theory of its main principles and doctrines or of its normative basis. Contract law theory raises issues concerning the relation between law and morality, the role and the importance of rights, the connection between justice and economics, and the distinction between private and public law. This collection of six full-length essays, written by some of the most eminent scholars in the field, explores the general theory of contract law from a variety of theoretical perspectives. The volume addresses a wide range of issues, both methodological and substantive, in the theory and practice of contract law. While the essays build upon past theoretical contributions, they also attempt to take contract theory further and suggest promising ways to develop theory of contract law.

• Ethics and Law for a Collective Age
• Christopher Kutz
• Published online: 18 March 2010 Print publication: 09 October 2000
• View description We live in a morally flawed world. Our lives are complicated by what other people do, and by the harms that flow from our social, economic and political institutions. Our relations as individuals to these collective harms constitute the domain of complicity. This book examines the relationship between collective responsibility and individual guilt. It presents a rigorous philosophical account of the nature of our relations to the social groups in which we participate, and uses that account in a discussion of contemporary moral theory. Christopher Kutz shows that the two prevailing theories of moral philosophy, Kantianism and consequentialism, both have difficulties resolving problems of complicity. He then argues for a richer theory of accountability in which any real understanding of collective action not only allows but demands individual responsibility.

The Jurisprudential Foundations of Corporate and Commercial Law

• Edited by Jody S. Kraus , Steven D. Walt
• Published online: 22 September 2009 Print publication: 02 October 2000
• View description This collection, first published in 2000, brings together essays by some of the most prominent scholars currently writing in commercial law theory. The essays address the foundations of efficiency analysis as the dominant theoretical paradigm in contemporary corporate and commercial law scholarship. Some of the questions addressed in the volume are: What are the historical roots of efficiency analysis in contract, sales, and corporate law? Is moral theory irrelevant to efficiency analysis in these areas; if relevant, are morality and efficiency compatible? Even if efficiency is otherwise reasonable as a normative goal in corporate and commercial law, does the complexity of efficiency make it practical to administer in adjudication? What is the best way of pursuing efficiency in corporate and commercial law? The volume reflects the most exciting work being done in contemporary legal theory. It will be of interest to professionals and students in law and philosophy of law.

Objectivity in Law and Morals

• Edited by Brian Leiter
• Published online: 06 October 2009 Print publication: 02 October 2000
• View description The seven original essays included in this volume from 2000, written by some of the world's most distinguished moral and legal philosophers, offer a sophisticated perspective on issues about the objectivity of legal interpretation and judicial decision-making. They examine objectivity from both metaphysical and epistemological perspectives and develop a variety of approaches, constructive and critical, to the fundamental problems of objectivity in morality. One of the key issues explored is that of the alleged 'domain-specificity' of conceptions of objectivity, i.e. whether there is a conception of objectivity appropriate for ethics that is different in kind from the conception of objectivity appropriate for other areas of study. This volume considers the intersection between objectivity in ethics and objectivity in law. It presents a survey of live issues in metaethics, and examines their relevance to theorizing about law and adjudication.

The Path of the Law and its Influence

• The Legacy of Oliver Wendell Holmes, Jr
• Edited by Steven J. Burton
• Published online: 22 October 2009 Print publication: 18 May 2000
• View description Oliver Wendell Holmes, Jr. (1841–1935) is, arguably, the most important American jurist of the twentieth century, and his essay The Path of the Law, first published in 1898, is the seminal work in American legal theory. In it, Holmes detailed his radical break with legal formalism and created the foundation for the leading contemporary schools of American legal thought. He was the dominant source of inspiration for the school of legal realism, and his insistence on a practical approach to law and legal analysis laid the basis for the realists' later concentration upon the pragmatic and empirical aspects of law and legal procedures. This volume brings together some of the most distinguished legal scholars from the United States and Canada to examine competing understandings of The Path of the Law and its implications for contemporary American jurisprudence. For the reader's convenience, the essay is republished in an Appendix.

Moral Combat

• The Dilemma of Legal Perspectivalism
• Published online: 05 November 2011 Print publication: 28 March 1999
• View description This book explores the thesis that legal roles force people to engage in moral combat, an idea which is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids. The 'role-relative' understanding of morality is shown to be incompatible with both consequentialist and deontological moral philosophies. In the end, Hurd shows that our best moral theory is one which never makes one actor's moral success turn on another's moral failure. Moral Combat is a sophisticated, well-conceived and carefully argued book on a very important and controversial topic at the junction between legal and political philosophy. It will be of interest to moral, legal, and political philosophers, as well as teachers and students of professional ethics in law.

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What is the Philosophy of Law?

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John Finnis, What is the Philosophy of Law?, The American Journal of Jurisprudence , Volume 59, Issue 2, December 2014, Pages 133–142, https://doi.org/10.1093/ajj/auu012

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The philosophy of law is not separate from ethics and political philosophy, but dependent upon them. It extends them by that special attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which—for reasons articulated by the philosophy of law—is characteristic of juridical thought. Positivism is coherently sustainable only as a thesis of or topic within natural law theory, which adequately incorporates it but remains engaged with ethical and political issues and challenges, both perennial and peculiar to this age. The article concludes by proposing a task for legal philosophy in coming years, in light of the fact that legal systems are not simply sets of norms.

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On the Relation between Law and Morality - From the Separation to the Connection Thesis in Gustav Radbruch's Legal Philosophy

2019, Archiv für Rechts- und Sozialphilosophie - Beiheft 158

Related Papers

C.G. Bateman, PhD

In legal philosophy, there is a question that has troubled scholars for at least two centuries: that of how we ought to understand what the law is, in so far as it may be either something which exists on its own apart from any system of morals, legal positivism, or whether law is intrinsically connected to morality, natural law. Whether the view one takes on this question will produce either better or worse results stemming from the professional actions of lawyers, judges, and legal scholars in both domestic and international legal contexts was both passionately contended by Gustav Radbruch (1878-1949), as a once positivist converted to natural law, and hotly debated by Lon Fuller (1902-1978) and Herbert Hart (1907-1992) on behalf of natural law and positivism, respectively. After living through World War 2 and witnessing the horrible crimes against individuals and humanity carried out by the Nazis, Radbruch came to the conclusion that even if a legal system rested on legal certaint...

Rechtstheorie

Archiv für Rechts- und Sozialphilosophie, Beiheft 158

Nearly thirty years ago, Robert Alexy in his book The Concept and Validity of Law as well as in other early articles raised non-positivistic arguments in the Continental European tradition against legal positivism in general, which was assumed to be held by, among others, John Austin, Hans Kelsen and H.L.A. Hart. The core thesis of legal positivism that was being discussed among contemporary German jurists, just as with their Anglo- American counterparts, is the claim that there is no necessary connection between law and morality. Robert Alexy has argued, however, that the law, besides consisting conceptually of elements of authoritative issuance and social efficacy, necessarily lays a claim to substantial correctness, which is derived from analytical arguments. Furthermore, if this claim to substantial correctness necessarily requires the incorporation of moral elements into law, then the ‘necessary connection thesis’, as defended by non-positivism, can be justified. Some of the most significant objections to this sort of claim, stemming from the Anglo-American world, are those introduced by Joseph Raz. In his ‘Reply’ to Robert Alexy, Raz raises at least three interesting criticisms, including, first, the ambiguity of ‘legal theory in the positivistic tradition’, second, the indeterminate formulations of the ‘separation thesis’, and, third, the necessary claim of law to legitimate authority as a moral claim. As a point of departure, I will argue that Raz’s three criticisms are misleading. For they do not enhance our understanding of the genuine compatibility or incompatibility between legal positivism and non-positivism. Despite the frequently reformulated theses of legal positivism and the various kinds of opponents responding thereto, the essential divergence between legal positivism and non-positivism was and remains the answer to the question of the relation between law and morality. Furthermore, I will clarify that in the strictest sense there can be three and only three logically possible positions concerning the relation between law and morality: the connection between them is either necessary, or impossible (i. e. they are necessarily separate), or contingent (i. e. they are neither necessarily connected nor necessarily separate). The first position is non-positivistic, while the latter two positions are, indeed, both positivistic, but in different forms: one may be called ‘exclusive’ legal positivism, the other ‘inclusive’ legal positivism. I will continue by showing that these three positions stand to one another in the relation of contraries, not contradictories, and that, taken together, they exhaust the logically possible positions concerning the relation between law and morality, never mind the tradition or authority from which these positions are derived. Raz mentions, however, many changeable formulations of the separation thesis, which even leads him to acknowledge ‘necessary connections between law and morality’. One who is trying to understand legal positivism would no doubt be puzzled by this claim. Nevertheless, I will argue that this is an alternative strategy of legal positivism, and it points to naturalistically oriented view. Although this necessary separation between law and morality, understood naturalistically, strikes one as strengthening the separation, in the end it leads to a weakened notion of necessity. This weakened necessary separation thesis, however, cannot be justified through the so-called claim of the law to legitimate authority, defended by Raz, for it is difficult to answer the question of whether a normally justified but factual authority can gain legitimate authority. Finally, the necessary connection between law and morality in a strong sense can still be justified by the claim of law to correctness, as per Alexy’s argument.

Law and Philosophy

Torben Spaak

Ratio Juris

Luc Wintgens

Arun S Richard

Csaba VARGA

Foreword [1994] 1–4 LAW AS PRACTICE QUELQUES QUESTIONS MÉTHODOLOGIQUES DE LA FORMATION DES CONCEPTS EN SCIENCES JURIDIQUES [1970] 7–33: 1. Introduction 7 / 2. La particularité de l’objet des sciences juridiques 8 / 3. La particularité de la méthodologie des sciences juridiques 10 / 4. La particularité de la formation des concepts en sciences juridiques: Quelques problèmes 15 [4.1. Le concept du droit 16 / 4.2. Le concept dogmatique du contenu du droit 21 / 4.3. Le concept de la normativité juridique 23 / 4.4. Le concept des lacunes en droit 24] / 5. La particularité de la formation des concepts en sciencesjuridiques: Quelques conclusions 26 / 6. La formation des concepts en sciences juridiques et la réalité: Conclusion finale 29 / 7. Annexe: Des bases d’une classification possible des définitions en sciences juridiques 31 // GELTUNG DES RECHTS – WIRKSAMKEIT DES RECHTS [1978] 35–42 // MACROSOCIOLOGICAL THEORIES OF LAW: A SURVEY AND APPRAISAL [1983] 43–76: I. Issues of the Macrosociological Theories of Law 46 / II. The Role of the Macrosociological Theories in the Social Science Foundation of Legal Thinking 63 // REFLECTIONS ON LAW AND ITS INNER MORALITY [1984] 77–89: 1. Law and Morals As Two Systems of Norms, and the Inner Morality of Law 77 / 2. Law As A Value Bearer and As A Mere External Indicator 78 / 3. The Inner and External Moral Credit of Legislator 83 / 4. The Inner Morality of Law 86 // THE LAW AND ITS LIMITS [1985] 91–96 LAW AS TECHNIQUE DOMAINE »EXTERNE« ET DOMAINE »INTERNE« EN DROIT [1983] 99–117: 1. Le »juridique« et le »non-juridique« 99 / 2. Domaine »externe« et domaine »interne« en tant que groupes de phénomènes 104 / 3. Domaine »externe« et domaine »interne« en tant que points de références 112 / 4. Conclusion 116 // DIE MINISTERIELLE BEGRÜNDUNG IN RECHTSPHILOSOPHISCHER SICHT [1977] 119–139: I. Die prinzipiellen und geschichtlichen Grundlagen der Herausforderung der ministeriellen Begründungen 120 / II. Die möglichen und erwünschten Funktionen der ministeriellen Begründung im sozialistischen Rechts 128 / III. Die ministerielle Begründung und ihr Wert in der Auslegung derRechtsnormen 132 // THE PREAMBLE: A QUESTION OF JURISPRUDENCE [1970] 141–167: I. The Notion of the Preamble 142 / II. Content and Functions of the Preambles 146 / III. Normativity of the Preamble Content 150 / IV. The Problem of the Justifiability of Preamble-drafting in the Light of Socialist Legal Policy 161 // PRESUMPTION AND FICTION: MEANS OF LEGAL TECHNIQUE [1988] 169–185: I. Presumption 169 [1. In the Judicial Process of Establishing the Facts: praesumptio homini vel facti 170 / 2. In the Normative Definition of the Facts: praesumptio juris tantum 170 / 3. In the Normative Definition of the Facts: praesumptio juris et de jure 171 / 4. In a Possible Theoretical Reconstruction 171] On »Presumption« 172 [1. Function 172 / 2. Presumption and Fiction 173 / 3. Irrelevancy of Epistemological Foundation 173 / 4. The Technique of Presumption 174] II. Fiction 175 [1. In the Linguistic Formation of Legal Norms 175 / 2. In the Judicial Application of Legal Norms 175 / 3. In the Doctrinal Processing of Legal Norms 176 / 4. In the Theoretical Reconstruction of Legal Norms 176 / 5. Approaches to and Understandings of Fiction 177] On »Fiction« 178 [1. History and Understandings 178 / 2. Classification 180 / 3. Law as Fiction 181 / 4. Presumption and Fiction 182] // LEGAL TECHNIQUE [1988] 187–198: I. Legal Technique 187 [1. In the Large Sense 1987/ 2. In Legal Practice 189 / 3. In Legal Science 189 / 4. As a Special Technique 190] II. On Legal Technique [1. Definition and Function 190 / 2. Legal Technique and Legal Cultures 192 / 3. Postulates of Legal Technique in the Cultures of Modem Formal Law 195 {a) The Principle of Consequentiality 195 / b) The Principle of Coherency 195 / c) The Principle of Conceptual Economy 196 / d) The Principle of Non-redundancy 196}] LAW AS LOGIC MODERNE STAATLICHKEIT UND MODERNES FORMALES RECHT [1982] 201–207: 1. Die Klassifizierung als logisches und als gesellschaftswissenschaftliches Verfahren 202 / 2. Typologie der staatlichen und rechtlichen Erscheinungen 202 / 3. Der moderne Staat und das moderne formale Recht: Frage der Zusammenhänge und Entwicklungsalternativen 204 // HETEROGENEITY AND VALIDITY OF LAW: OUTLINES OF AN ONTOLOGICAL RECONSTRUCTION [1986] 209–218 // LEIBNIZ UND DIE FRAGE DER RECHTLICHEN SYSTEMBILDUNG [1973] 219–232: 1. Aktualität von Leibniz 219 / 2. Der Gedanke der universalen mathematischen Methode 221 / 3. Die logischen Konzeption der Rechtswissenschaft 224 / 4. Die geometrische Vision der rechtlichen Systembildung 227 / 5. Das Scheitern der Leibnizschen Idee und seine Lehre 230 // LAW AND ITS APPROACH AS A SYSTEM [1975] 233–255: 1. The Logical Structure of Law as a Historical Product 233 / 2. Tendencies of Formal Rationalization in Legal Development 234 / 3. Historical Development of the Approach to Law as a System 239 / 4. Present State of the Attempts at a Logical Reconstruction of Law and Legal Reasoning 243 / 5. Question of the Axiomatic Conception of Law 248 / 6. Heuristic Value of the Approach to Law as a System 250 // LOGIC OF LAW AND JUDICIAL ACTIVITY: A GAP BETWEEN IDEALS, REALITY AND FUTURE PERSPECTIVES [1982] 258–288: 1. Historical Background 259 / 2. Ideals 264 / 3. Reality 270 / 4. Future Perspectives 277 // KELSEN’S PURE THEORY OF LAW – YESTERDAY, TODAY AND TOMORROW [ms] 289–293, THE NATURE OF THE JUDICIAL APPLICATION OF NORMS: SCIENCE- AND LANGUAGE-PHILOSOPHICAL CONSIDERATIONS [ms] 295–314: 1. Presuppositions 295 / 2. The Context of the Application of Norms 300 [2.1 Actualisation in Concrete Meaning 300 / 2.2 Linguistic Undefinedness 304 / 2.3 Lack of Logical Consequence in the Normative Sphere 308] LAW AS EXPERIENCE ON THE SOCIALLY DETERMINED NATURE OF LEGAL REASONING [1971] 317–374: 1. Interrelation of the Creation and Application of Law 317 / 2. The Socially Determined Nature of the Application of Law 332 / 3. The Socially Determined Nature of Legal Reasoning 337 / 4. The Question of Perspectives 363 // TOWARDS THE ONTOLOGICAL FOUNDATION OF LAW: SOME THESES ON THE BASIS OF LUKÁCS’ ONTOLOGY [1983] 375–390, IS LAW A SYSTEM OF ENACTMENTS? [1984] 391–398: 1. Working Models of Law 391 / 2. Senses of ContExtuality in Law 393 / 3. Jurisprudential Approach and Socio-ontological Approach 394 / 4. Conclusions 396 [4.1. Law as Historical Continuum 396 / 4.2.Law as Open System 396 / 4.3. / Law as Complex Phenomenon with Alternative Strategy 396 / 4.4. Law as an Irreversible Process 397 / 4.5. The Genuinely Societal Character of Law 397] // EUROPEAN INTEGRATION AND THE UNIQUENESS OF NATIONAL LEGAL CULTURES [1992] 399–411: 1. The Philosophical Framework 399 / 2. Law as Tradition 403 / 3. European Integration and the Preservation of the Uniqueness of National Legal Orders 407 // INSTITUTIONS AS SYSTEMS: NOTES ON THE CLOSED SETS, OPEN VISTAS OF DEVELOPMENT, AND TRANSCENDENCY OF INSTITUTIONS AND THEIR CONCEPTUAL REPRESENTATIONS [1991] 413–424: I. A Logic of Systems 413 / II. Ideal Types and Historically Concrete Manifestations 416 / III. Ideal Type As A Normative Ideology 418 / IV.Objectivity and Contingency of Systems 420 / V. Limits and Bonds, ConsEquEntiality and Practicability of a System 423 LAW AS HISTORY FROM LEGAL CUSTOMS TO LEGAL FOLKWAYS [1981] 427–436, ANTHROPOLOGICAL JURISPRUDENCE? LEOPOLD POSPÍŠIL AND THE COMPARATIVE STUDY OF LEGAL CULTURES [1985] 437–457: 1. Rule, Fact and Principle in the Concept of Law 438 [a) Abstract rules 439 / b) Abstracts from actual behaviour 439 / c) Principles Upheld by Legal Decisions 440] 2. Attributes of Law 445 [a) Authority 446 / b) Intention of Universal Application 446 / c) Obligatio 447 / d) Sanction 447] 3. Law and its Social Functional Definition 450 [(1) Law is a Global Phenomenon 451 / (2) Law is a Phenomenon Able to Settle Conflicts of Interests 451 / 3) Law is a Phenomenon Prevailing as the Supreme Controlling Factor 452] 4. Conclusion 454 // LAW AS A SOCIAL ISSUE [1985] 459–475: I. The Social Prestige of Law 459 / II. The Social Nature of Law 463 / III. Law and Language in the Service of Social Mediation 466 (1. Passive Mediation and Active Intervention 468 / 2. The Dilemma of the Mediation of Values 472) // LAW AS HISTORY? [1986] 477–484: 1. Understandings of the Term »Law« 477 / 2. Law and History 478 / 3. Law as History 481 // RECHTSKULTUR – DENKKULTUR: EINFÜHRUNG ZUM THEMA [1988] 485–489 Curriculum Vitae 491 / Bibliography 493 // Index 515 / Index of Normative Materials 523 / Index of Names 525

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Eurela Mujaj

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What is the Philosophy of Law?

Rivista di Filosofia del Diritto 1 (2012) 67-78

Notre Dame Legal Studies Paper No. 12-67

Oxford Legal Studies Research Paper No. 45/2012

12 Pages Posted: 18 Jul 2012 Last revised: 9 Aug 2012

John Finnis

University of Oxford

Date Written: July 16, 2012

The philosophy of law is not separate from but dependent upon ethics and political philosophy, which it extends by that attention to the past (of sources, constitutions, contracts, acquired rights, etc.) which is characteristic of juridical thought for reasons articulated by the philosophy of law. Positivism is legitimate only as a thesis of, or topic within, natural law theory, which adequately incorporates it but remains transparently engaged with the ethical and political issues and challenges both perennial and peculiar to this age. The paper concludes by proposing a task for legal philosophy, in light of the fact that legal systems are not simply sets of norms.

Keywords: philosophy of law, jurisprudence, general principles of law, positivism, natural law theory

JEL Classification: K00, K1, K3, K4, K10, K30, K40

Suggested Citation: Suggested Citation

John M. Finnis (Contact Author)

University of oxford ( email ).

University College Oxford, OX1 4BH United Kingdom

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Oxford Nicolas Berggruen Prize for Best Doctoral Dissertation in Philosophy, Law & Politics 2024

The Law Faculty is delighted to announce the Oxford Nicolas Berggruen Prize winner for Best Doctoral Dissertation in Philosophy, Law & Politics 2024.

This prestigious prize, generously funded by Nicolas Berggruen of the Berggruen Institute in Los Angeles, is awarded to the work that is both excellent and transformative in either theory or practice. The selection process is rigorous, with one dissertation nominated by each of the three faculties in Oxford (Philosophy, Law, and DPIR) every year, and the final selection made among the three highly impressive nominees by a committee constituted by the terms of the prize.

The Prize 2024 is awarded to Dr Lea Cantor for her dissertation “Ancient Philosophy within a Global Purview: Parmenides and Zhuangzi on Expressing what Can (and Cannot) be Known” . Dr Cantor’s dissertation argues that “widespread misconceptions about the early history of philosophy undermine the study of ancient philosophy from a global perspective”. Dr Lea Cantor challenges “an influential narrative according to which philosophy emerged through a shift from myth to reason, or mythos to logos” that misrepresents “the history of ancient Greek philosophy, and simultaneously underpins the marginalization of so-called ‘non-Western’ philosophical traditions.” In her work, she examines “how the received narrative engenders interpretive blind spots within specialist work on ancient philosophy, by exploring two foundational philosophers of early Greek and classical Chinese philosophy, Parmenides and Zhuangzi”. The result is a piece of work that is, in the words of the examiners, "an impressive and markedly original thesis", which will become a basis for a monograph.

On hearing she had won the prize, Lea said:

“I am honoured, and delighted, that my doctoral dissertation has been selected for this year’s Oxford Nicolas Berggruen Prize. My doctoral work sought to reconceptualize ancient philosophy, by dispelling misconceptions about the early history of philosophy which persist to this day. My dissertation focuses on two foundational texts in the global history of philosophy: the classical Daoist text Zhuangzi, and the fragments of the Presocratic philosopher Parmenides. It challenges the deep-seated but facile typecasting of Zhuangzi as either an anti-rational relativist or a mystical monist, and of Parmenides as a triumphalist dogmatist. Currently I am working on a monograph based on my doctoral work. My research seeks to foster cross-cultural dialogue on ancient philosophy, and a globally minded approach to philosophy and its history. Going forward I intend to continue pursuing these aims.”

Dr Lea Cantor specialises in classical Chinese philosophy, ancient Greek philosophy, and the global history and historiography of philosophy. She is also interested in the European reception of Chinese and Greek philosophy, as well as early modern Ethiopian philosophy. Dr Cantor is a Carmen Blacker Research Fellow in Philosophy at Peterhouse, Cambridge and will be taking up a permanent Lectureship in the History of Philosophy at the University of Sheffield from September 2025. Apart from her research and teaching, Lea has assumed a lead role in advocacy efforts relating to the representation and study of non-European philosophies in university education and beyond: she founded Philiminality, a student-run platform for cross-cultural and interdisciplinary philosophy at Oxford and Cambridge and has organised and raised funding for numerous talks, panels, mentoring schemes, and international conferences addressing aspects of Chinese, Arabic and Islamic, African, Mesopotamian, Indian, Japanese, and Latin American philosophy. In the future, Dr Cantor intends to continue supporting projects of this kind as a member of the Management Committee of the British Society for the History of Philosophy and of the American Philosophical Association’s Committee on International Cooperation.

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Carl Hempel

Carl G. Hempel (1905–1997) was the principal proponent of the “covering law” theory of explanation and the paradoxes of confirmation as basic elements of the theory of science. A master of philosophical methodology, Hempel pursued explications of initially vague and ambiguous concepts, which were required to satisfy very specific criteria of adequacy. With Rudolf Carnap and Hans Reichenbach, he was instrumental in the transformation of the dominant philosophical movement of the 1930s and 40s, which was known as “logical positivism”, into the more nuanced position known as “logical empiricism”. His studies of induction, explanation, and rationality in science exerted a profound influence upon more than a generation of philosophers of science, many of whom became leaders of the discipline in their own right.

1. Biographical Sketch

2.1.1 quine’s complaints, 2.1.2 hempel’s concerns, 2.1.3 intensional methodology, 2.2 the observational/theoretical distinction, 2.3 the verifiability criterion of cognitive significance, 3.1 the paradox of confirmation, 3.2 the equivalence condition, 3.3 the limits of extensionality, 4.1 the semi-formal explication, 4.2 ontic vs. epistemic conceptions, 4.3 the problem of lawlikeness, 5.1 the symmetry thesis, 5.2 the paradoxes of explanation, 6.1 the requirement of maximal specificity, 6.2 statistical relevance vs. causal relevance, 6.3 revising hempel’s criteria of adequacy, 7. the problem of provisos, 8. reflections on rationality, primary sources: works by hempel, primary sources: coauthored works, secondary literature, other internet resources, related entries.

Carl G(ustav) Hempel (1905–97), known as “Peter” to his friends, was born near Berlin, Germany, on January 8, 1905. He studied philosophy, physics and mathematics at the Universities of Göttingen and Heidelberg before coming to the University of Berlin in 1925, where he studied with Hans Reichenbach. Impressed by the work of David Hilbert and Paul Bernays on the foundations of mathematics and introduced to the studies of Rudolf Carnap by Reichenbach, Hempel came to believe that the application of symbolic logic held the key to resolving a broad range of problems in philosophy, including that of separating genuine problems from merely apparent ones. Hempel’s commitment to rigorous explications of the nature of cognitive significance, of scientific explanation, and of scientific rationality would become the hallmark of his research, which exerted great influence on professional philosophers, especially during the middle decades of the 20 th Century.

In 1929, at Reichenbach’s suggestion, Hempel spent the fall semester at the University of Vienna, where he studied with Carnap, Moritz Schlick, and Frederick Waismann, who were advocates of logical positivism and members of (what came to be known as) “the Vienna Circle”. It would fall to Hempel to become perhaps the most astute critic of that movement and to contribute to its refinement as logical empiricism. As Hitler increased his power in Germany, Hempel, who was not Jewish but did not support the Nazi regime, moved to Brussels and began collaborating with Paul Oppenheim, which would result in several classic papers, including “Studies in the Logic of Explanation”, which appeared in 1948 (Rescher 2005: Chs. 8 and 9). Hempel would also visit the United States twice—the University of Chicago in 1937–38 and then the City College of New York in 1939–40, where he held his first academic position—and eventually became a naturalized citizen.

He was productive throughout his career, publishing such important papers as “The Function of General Laws in History” (1942) and “Studies in the Logic of Confirmation”, “Geometry and Empirical Science”, and “The Nature of Mathematical Truth” (all in 1945), before leaving City College for Yale. While there, Hempel would publish “Problems and Changes in the Empiricist Criterion of Meaning” (1950) and “The Concept of Cognitive Significance: A Reconsideration” (1951), as well as his first book, a volume in the International Encyclopedia of Unified Science, Fundamentals of Concept Formation in Empirical Science (1952). Hempel moved to Princeton in 1955, where his research program flourished and his influence upon professional philosophers became immense.

During his two decades at Princeton, Hempel’s approach dominated the philosophy of science. His major articles during this interval included “The Theoretician’s Dilemma” (1958), “Inductive Inconsistencies” (1960), “Rational Action” (1961), and “Deductive-Nomological vs. Statistical Explanation” and “Explanation in Science and in History” and (both in 1962). A classic collection of his studies, Aspects of Scientific Explanation (1965c), became a scholar’s bible for generations of graduate students. His introductory text, Philosophy of Natural Science (1966a), would be translated into ten languages. Other articles he published thereafter included “Recent Problems of Induction” (1966b) and “Maximal Specificity and Lawlikeness in Probabilistic Explanation” (1968) as well as a series of studies that included “On the ‘Standard Conception’ of Scientific Theories” (1970).

At the University of Pittsburgh following his mandatory retirement from Princeton in 1973, he continued to publish significant articles, including studies of the nature of scientific rationality, “Scientific Rationality: Analytic vs. Pragmatic Perspectives” (1979), and “Turns in the Evolution of the Problem of Induction” (1981), and on the structure of scientific theories, including, most importantly, “Limits of a Deductive Construal of the Function of Scientific Theories” (1988a) as well as “Provisos: A Problem Concerning the Inferential Function of Scientific Theories” (1988b), further enhancing his reputation by his willingness to reconsider earlier positions. After his death in 1997, new collections of his papers appeared (Jeffrey 2000; Fetzer 2001), which complemented studies of his research (Rescher 1969; Esler et al. 1985; Kitcher & Salmon 1989; Fetzer 2000b).

2. The Critique of Logical Positivism

However surprising it may initially seem, contemporary developments in the philosophy of science can only be properly appreciated in relation to the historical background of logical positivism. Hempel himself attained a certain degree of prominence as a critic of this movement. Language, Truth and Logic (1936; 2 nd edition, 1946), authored by A.J. Ayer, offers a lucid exposition of the movement, which was—with certain variations—based upon the analytic/synthetic distinction, the observational/theoretical distinction, and the verifiability criterion of meaningfulness. A fundamental desideratum motivating its members was to establish standards for separating genuine questions for which answers might be found from pseudo-questions for which no answers could be found.

According to the first principle, sentences are analytic relative to a language framework \(\mathbf{L}\) when their truth follows from its grammar and vocabulary alone. In English, “Bachelors are unmarried” cannot be false, since “bachelor \(=_{\df}\) unmarried, adult male”. Sentences of this kind make no claims about the world, but instead reflect features of the linguistic framework as syntactical or semantic truths in \(\mathbf{L}\). And sentences are synthetic when they make claims about the world. Their truth in \(\mathbf{L}\) does not follow from its grammar and vocabulary alone but hinges upon properties of the world and its history. According to logical positivism, all such claims about the world have to be evaluated on the basis of experience, which means the kind of knowledge they display is a posteriori . But kinds of knowledge whose truth can be established independently of experience are a priori .

Logical positivism affirmed that, given a language \(\mathbf{L}\), all a priori knowledge is analytic and all synthetic knowledge is a posteriori , thus denying the existence of knowledge that is both synthetic and a priori . Indeed, the denial of the existence of synthetic a priori knowledge is commonly assumed to define the position known as “Empiricism”, while the affirmation of its existence defines “Rationalism”. Figure 1 thus reflects the intersection of kinds of sentences and kinds of knowledge on the Empiricist approach:

Figure 1. The Empiricist Position

The category for sentences that are analytic and yet represent a posteriori knowledge deserves discussion. The empirical study of the use of language within language-using communities by field linguists involves establishing the grammar and the vocabulary employed within each such community. Their empirical research yields theories of the languages, \(\mathbf{L}\), used in those communities and affords a basis for distinguishing between which sentences are analytic-in-\(\mathbf{L}\) and which are synthetic-in-\(\mathbf{L}\). The kind of knowledge they acquire about specific sentences based on empirical procedures thus assumes the form, “Sentence \(S\) is analytic-in-\(\mathbf{L}\)”, when that is true of sentence \(S\), which is a posteriori .

One of Hempel’s early influential articles was a defense of logicism, according to which mathematics—with the notable exception of geometry, which he addressed separately—can be reduced to logic (for Hempel, including set theory) as its foundation (Hempel 1945c). Mathematics thus becomes an exemplar of analytic a priori knowledge. Two subtheses should be distinguished: (i) that all mathematical concept s can be defined by means of basic logical concepts; and (ii) that all mathematical theorems can be deduced from basic logical truths. In order to distinguish logicism from formalism, however, the former maintains that there is one system of logic that is fundamental to all inquiries , where all mathematical terms are reducible to logical terms, and all mathematical axioms are derivable from logical ones, which formalism denies (Rech 2004).

The tenability of logicism has been disputed on multiple grounds, the most prominent of which is that the notion of membership fundamental to the theory of sets is not a logical notion but rather a symbol that must be added to first-order logic to formalize what is properly understood as a non-logical theory . Nor would philosophers today accept the conception of the axioms of set theory as logical axioms, since there exist alternatives. So even if mathematics were reducible to set theory, these considerations undermine Hempel’s claim that mathematics is thereby reducible to logic (cf. Benacerraf 1981 and Linsky & Zalta 2006, which provides an extensive bibliography). Hempel’s views about geometry, in retrospect, thus appear to have been the better founded.

2.1 The Analytic/Synthetic Distinction

The analytic/synthetic distinction and the observational/theoretical distinction were tied together by the verifiability criterion of meaningfulness , according to which, in relation to a given language, \(\mathbf{L}\), a sentence \(S\) is meaningful if and only if it is either analytic-in-\(\mathbf{L}\) or synthetic-in-\(\mathbf{L}\) as an observation sentence or a sentence whose truth follows from a finite set of observation sentences. By this standard, sentences that are non-analytic but also non-verifiable, including various theological or metaphysical assertions concerning God or The Absolute, qualify as cognitively meaningless. This was viewed as a desirable result. But, as Hempel would demonstrate, its scope was far too sweeping, since it also rendered meaningless the distinctively scientific assertions made by laws and theories.

From an historical perspective, logical positivism represents a linguistic version of the empiricist epistemology of David Hume (1711–76). It refines his crucial distinctions of “relations between ideas” and “matters of fact” by redefining them relative to a language \(\mathbf{L}\) as sentences that are analytic-in-\(\mathbf{L}\) and synthetic-in-\(\mathbf{L}\), respectively. His condition that significant ideas are those which can be traced back to impressions in experience that gave rise to them now became the claim that synthetic sentences have to be justified by derivability from finite classes of observation sentences. Hume applied this criterion to exclude the idea of necessary connections , which are not observable, from significant causal claims, which were thereby reduced to relations of regular association, spatial contiguity, and temporal succession. And logical positivism followed Hume’s lead.

Empiricism historically stands in opposition to Rationalism, which is represented most prominently by Immanuel Kant, who argued that the mind, in processing experiences, imposes certain properties on whatever we experience, including what he called Forms of Intuition and Categories of Understanding. The Forms of Intuition impose Euclidean spatial relations and Newtonian temporal relations; the Categories of Understanding require objects to be interpreted as substances and causes as inherently deterministic. Several developments in the history of science, such as the emergence of the theory of relativity and of quantum mechanics, undermine Kant’s position by introducing the role of frames of reference and of probabilistic causation. Newer versions are associated with Noam Chomsky and with Jerry Fodor, who have championed the ideas of an innate syntax and innate semantics, respectively (Chomsky 1957; Fodor 1975; Chomsky 1986)

Indeed, according to the computational theory of the mind, human minds, like computing machines, are special kinds of formal systems. Since deviations from formal systems of language in practice can be considerable, Chomsky introduced a distinction between competence and performance , where the former models the formal system and various explanations are advanced for deviations from that model in practice, similar to differences between the fall of bodies in a vacuum and in air, which raises questions about testability that parallel those for scientific theories, in general. If languages are not best understood as formal systems, however, or if syntax and semantics are not innate, then Chomsky and Fodor’s views are as vulnerable as those of Kant. If syntax is an emergent property of semantic complexity, for example, then grammar is not innate; and if mentality has and continues to evolve, Chomsky and Fodor are wrong (Schoenemann 1999; Fetzer 2005).

In his study of formal systems for geometry (Hempel 1945b), Hempel discusses the existence of alternatives based upon different axioms, which differentiate Euclidean geometry from its non-Euclidean rivals. According to Euclid, for example, the sum of the interior angles of a triangle must equal 180° and, in relation to a point separate from a given line, one and only one parallel line passes through it. The alternatives advanced by Lobachevsky (hyperbolic) and by Riemann (elliptical), however, which represent the surface of a sphere and of a saddle, respectively, violate both of those conditions, albeit in different ways. Hempel emphasized that all three, as formal systems, are on a par, where the most appropriate choice to describe the geometry of space depends on the outcome of empirical studies. As it happened, Einstein would adopt a generalized form of Riemannian geometry in his general theory of relativity.

Hempel accordingly drew a distinction of fundamental importance between pure and applied mathematics, which he emphasized by using a quotation from Einstein, who had observed, “As far as the laws of mathematics refer to reality, they are not certain; and as far as they are certain, they do not refer to reality” (1921). The existence of alternative and incompatible formal systems, moreover, appears to affect Hempel’s defense of logicism from another direction. If mathematics is supposed to be reducible to logic and logic is supposed to be consistent, then how can alternative geometries be consistently reducible to logic? No one would dispute that they exist as distinct formal systems with their own axioms and primitives, but if these geometries are jointly reducible to logic only if logic is inconsistent, their existence suggests that, perhaps, as formalism claims, it is not the case there is one system of logic that is fundamental to all inquiries.

The analytic/synthetic distinction took a decided hit when the noted logician, Willard van Orman Quine, published “Two Dogmas of Empiricism” (1953), challenging its adequacy. Quine argued that the notion of analyticity presupposes the notion of synonymy-in-use, which in turn presupposes understanding inter-substitutability-while-preserving-truth. He claimed none of the notions can be understood without the other, creating a circular relation between them. Thus, matching up a definiens with a definiendum could only be done if we already understood that the definiens specifies the meaning of the word that is being defined—a variation of “the paradox of analysis”, according to which we either already know the meaning of words (in which case analysis is unnecessary) or we do not (in which case it is impossible). The idea of analyticity appeared to have been deposed.

The paper created a sensation and has been the most influential philosophical article of the past 100 years. But Quine explicitly allowed for the existence of the class of logical truths (such as “No unmarried man is married”) as narrowly analytic sentences and their relationship to broadly analytic sentences (such as “No bachelor is married”), when the definitional relationship between them has been suitably stipulated (as in “bachelor \(=_{\df}\) unmarried, adult male” in a language framework \(\mathbf{L})\). In cases of this kind, he conceded, inter-substitutability, synonymy, and analyticity are related in an unproblematic way. It would have been odd for a logician to deny the existence of logical truths or the role of stipulations, which are basic to the construction of formal systems, which suggests that he may not have actually defeated the idea of analyticity, after all (Fetzer 1993).

Indeed, Carnap (1939) had explained that the process of constructing a vocabulary and a grammar for a language-in-use involves several stages, including observation of the use of language by members of the community, formulating hypotheses regarding the meaning of its phrases and expressions, and drawing inferences about the underlying grammar. These are pragmatic, semantic, and syntactical procedures, respectively, and decisions have to be made in arriving at a theory about the language as the outcome of empirical research. The construction of formal systems thus provides an illustration of the elements of artificial languages, where accounts of natural language counterparts can be subject to further testing and refinement. The linguistic practices of a specific community can thus be modeled and thereby overcome Quine’s professed objections.

Moreover, in Fundamentals of Concept Formation in Empirical Science (1952), Hempel had endorsed explication as a method of definition analogous to theory construction by taking words and phrases that are somewhat vague and ambiguous and subjecting them to a process of clarification and disambiguation. Adequate explications are required to satisfy criteria of syntactical determinacy, semantic relevance, and pragmatic benefit (by clarifying and illuminating the meaning of those words and phrases in specific contexts). The word “probability” is vague and ambiguous, for example, but various contexts of its usage can be distinguished and theories of evidential support, relative frequency, and causal propensity can be advanced. Hempel, following Carnap (1950), had accordingly advanced a methodology that dealt with the paradox of analysis before “Two Dogmas”.

About the same time, however, Hempel found reasons of his own for doubting that the analytic/synthetic distinction was tenable, which surfaced in his study of dispositional predicates, such as “malleable”, “soluble” and “magnetic”. They designate, not directly observable properties, but (in the case of “magnetic”) tendencies on the part of some kinds of things to display specific reactions (such as attracting small iron objects) under suitable conditions (such as the presence of small iron objects in the vicinity). It is very tempting to define them using the material conditional , “___ \(\supset \ldots\)” by definitions like,

which could then be formalized by means of the horseshoe and suitable abbreviations,

where “\(t^*\)” is equal to or later than “\(t\)” and reflects that effects brought about by causes entail changes across time. Since the material “if ___ then …” is equivalent to “either not-___ or …”, however, the meaning of (D2) turns out to be logically equivalent to,

which means that anything not subject to the test, such as a brown cow, is magnetic. Hempel acknowledged that the use of the subjunctive conditional , say, “___ \(\rightarrow \ldots\)”, formalizing what would be the case … if something ___ were the case , in this case,

“if, at \(t\), as small iron object were close to \(x\), then it would move toward \(x\) at \(t^*\)” (which assumes the satisfaction of the test condition) would avoid the problem, because these conditionals take for granted their antecedents are satisfied (that “ Sxt ” is true). But while acknowledging the importance of subjunctive conditionals for an understanding of both counterfactual conditionals and lawlike sentences, Hempel regarded their explication as not fully satisfactory and their use as “a program, rather than a solution” (Hempel 1952: 25).

He therefore adopted a method from Carnap to overcome this difficulty, where, instead of attributing the property in question to anything not subject to the test, the predicate is partially defined by means of a reduction sentence , such as “if, at \(t\), a small iron object is close to \(x\), then \(x\) is magnetic at \(t\) if and only if it moves toward \(x\) at \(t\)” or symbolically,

where a biconditional, “___ \(\equiv \ldots\)”, is true when “___” and “…” have the same truth value and otherwise is false. This solved one problem by abandoning the goal of defining the predicate for a partial specification of meaning. But it created another, insofar as, if there should be more than one test/response for a property—such as that, “if \(x\) moves through a closed wire loop at \(t\), then \(x\) is magnetic at \(t\) if and only if an electric current flows in the loop at \(t^*\)”—in conjunction they jointly imply that any object \(x\) that is near small iron objects and moves through a closed wire loop will generate a current in the loop if and only if it attracts those iron objects. But this no longer has the character of even a partial definition but instead that of an empirical law. The prospect that analytic sentences might have synthetic consequences was not a welcome result (Hempel 1952).

Carnap (1963) was receptive to the adoption of an intensional methodology that went beyond the constraints of extensional logic, which Hempel (1965b) would consider but leave for others to pursue (Fetzer 1981, 1993). The distinction can be elaborated with respect to the difference between the actual world and alternative possible worlds as sequences of events that diverge from those that define the history of the actual world. If specific conditions that obtained at a specific time had been different, for example, the course of ensuing events would have changed. These intensional methods can be applied to the problems of defining dispositions and the nature of laws by employing descriptions of possible worlds as variations on the actual, not as alternatives that are “as real as” the actual—as David Lewis (2001a,b) has proposed—but as a means for formally specifying the semantic content of subjunctives and counterfactuals (where counterfactuals are subjunctives with false antecedents), using an alternative calculus.

There appear to be two broad kinds of justification for subjunctive conditionals, which are logical and ontological, where logical justifications are derived from the grammar and vocabulary of a specific language, such as English. The subjunctive, “If John were a bachelor, then John would be unmarried”, for example, follows from the definition of “bachelor” as “unmarried, adult male”. Analogously, the subjunctive, “If this were gold, then it would be malleable”, could be justified on ontological grounds if being malleable were (let us call it) a permanent attribute of being gold as a reference property, where attributes are “permanent” when there is no process or procedure, natural or contrived, by means of which things having those reference properties could lose those attributes except by no longer possessing those reference properties, even though that is not a logical consequence of their respective definitions (Fetzer 1977). The approach appeals to necessary connections, which are unobservable and therefore unacceptable to Hume. As we shall discover, that they are unobservable doesn’t mean they are empirically untestable.

The elaboration of a possible-worlds formal semantics that might be suitable for this purpose, however, requires differentiating between familiar minimal-change semantics, where the world remains the same except for specified changes, and a maximal-change semantics, in which everything can change except for specified properties, which is the ingredient that seems to be required to satisfy the constraints of scientific inquiries as opposed to conversational discourse (Fetzer & Nute 1979, 1980). In the 1950s and 60s, however, Nelson Goodman (1955) and Karl Popper (1965) were attempting to sort out the linkage between dispositions, subjunctives, and laws from distinctive points of view. Hempel’s commitments to extensional logic and to Humean constraints would lead him to endorse an account of laws that was strongly influenced by Goodman and to embrace a pragmatic account that was both epistemically and contextually-dependent.

While the analytic/synthetic distinction appears to be justifiable in modeling important properties of languages, the observational/theoretical distinction does not fare equally well. Within logical positivism, observation language was assumed to consist of names and predicates whose applicability or not can be ascertained, under suitable conditions, by means of direct observation (such as using names and predicates for colors, shapes, sounds) or relatively simple measurement (names and predicates for heights, weights, and sizes, for example). This was an epistemic position, of course, since it was sorting them out based upon their accessibility by means of experience. Both theoretical and dispositional predicates, which refer to non-observables, posed serious problems for the positivist position, since the verifiability criterion implies they must be reducible to observables or are empirically meaningless. Karl Popper (1965, 1968), however, would carry the argument in a different direction by looking at the ontic nature of properties.

Popper has emphasized that we are theorizing all the time. Consider the observation of a glass full of clear liquid. Suppose it’s water. Then it quenches thirst and extinguishes fires and nourishes plants. But what if it’s alcohol instead? Just describing it as “water” entails innumerable subjunctives about the kinds of responses it would display under a wide variety of test conditions. They are the would be’s of things of that kind. Consider the differences between basket balls, billiard balls, and tennis balls. Things of different kinds can do different things. Even the seemingly simplest observation of a rabbit in the backyard, for example, implies that it is going to display rabbit-like behavior, including eating carrots when my wife puts them out. It is going to hop around and create more rabbits. If it’s a rabbit, it is going to have rabbit DNA. It will not turn out to be stuffed. And this suggested that observational properties and predicates are dispositional, too.

From the Humean epistemic perspective, observational, dispositional, and theoretical predicates are successively more and more problematical in relation to their accessibility via experience. The observational describe observable properties of observable entities; the dispositional , unobservable properties of observable entities; and the theoretical , unobservable properties of unobservable entities. Popper suggested that observational and theoretical properties (gravitational strengths electromagnet fields, and such) are ontologically dispositional, too (Popper 1965: 425). But if universals as properties that can be attributed to any member of any possible world are dispositions and the kind of property dispositions are does not depend upon the ease with which their presence or absence can be ascertained, then nomological subjunctives and counterfactuals—taken as instantiations of lawlike generalizations for specific individuals, places, and times—might be explicable as displays of dispositions and of natural necessities (Fetzer 1981).

Hempel (1950, 1951), meanwhile, demonstrated that the verifiability criterion could not be sustained. Since it restricts empirical knowledge to observation sentences and their deductive consequences, scientific theories are reduced to logical constructions from observables. In a series of studies about cognitive significance and empirical testability, he demonstrated that the verifiability criterion implies that existential generalizations are meaningful, but that universal generalizations are not, even though they include general laws, the principal objects of scientific discovery. Hypotheses about relative frequencies in finite sequences are meaningful, but hypotheses concerning limits in infinite sequences are not. The verifiability criterion thus imposed a standard that was too strong to accommodate the characteristic claims of science and was not justifiable.

Indeed, on the assumption that a sentence \(S\) is meaningful if and only if its negation is meaningful, Hempel demonstrated that the criterion produced consequences that were counterintuitive if not logically inconsistent. The sentence, “At least one stork is red-legged”, for example, is meaningful because it can be verified by observing one red-legged stork; yet its negation, “It is not the case that even one stork is red-legged”, cannot be shown to be true by observing any finite number of red-legged storks and is therefore not meaningful. Assertions about God or The Absolute were meaningless by this criterion, since they are not observation statements or deducible from them. They concern entities that are non-observable. That was a desirable result. But by the same standard, claims that were made by scientific laws and theories were also meaningless.

Indeed, scientific theories affirming the existence of gravitational attractions and of electromagnetic fields were thus rendered comparable to beliefs about transcendent entities such as an omnipotent, omniscient, and omni-benevolent God, for example, because no finite sets of observation sentences are sufficient to deduce the existence of entities of those kinds. These considerations suggested that the logical relationship between scientific theories and empirical evidence cannot be exhausted by means of observation sentences and their deductive consequences alone, but needs to include observation sentences and their inductive consequences as well (Hempel 1958). More attention would now be devoted to the notions of testability and of confirmation and disconfirmation as forms of partial verification and partial falsification, where Hempel would recommend an alternative to the standard conception of scientific theories to overcome otherwise intractable problems with the observational/theoretical distinction.

3. Scientific Reasoning

The need to dismantle the verifiability criterion of meaningfulness together with the demise of the observational/theoretical distinction meant that logical positivism no longer represented a rationally defensible position. At least two of its defining tenets had been shown to be without merit. Since most philosophers believed that Quine had shown the analytic/synthetic distinction was also untenable, moreover, many concluded that the enterprise had been a total failure. Among the important benefits of Hempel’s critique, however, was the production of more general and flexible criteria of cognitive significance in Hempel (1965b), included in a famous collection of his studies, Aspects of Scientific Explanation (1965d). There he proposed that cognitive significance could not be adequately captured by means of principles of verification or falsification, whose defects were parallel, but instead required a far more subtle and nuanced approach.

Hempel suggested multiple criteria for assessing the cognitive significance of different theoretical systems, where significance is not categorical but rather a matter of degree:

Significant systems range from those whose entire extralogical vocabulary consists of observation terms, through theories whose formulation relies heavily on theoretical constructs, on to systems with hardly any bearing on potential empirical findings. (Hempel 1965b: 117, italics added)

The criteria Hempel offered for evaluating the “degrees of significance” of theoretical systems (as conjunctions of hypotheses, definitions, and auxiliary claims) were (a) the clarity and precision with which they are formulated, including explicit connections to observational language; (b) the systematic—explanatory and predictive—power of such a system, in relation to observable phenomena; (c) the formal simplicity of the systems with which a certain degree of systematic power is attained; and (d) the extent to which those systems have been confirmed by experimental evidence (Hempel 1965b). The elegance of Hempel’s study laid to rest any lingering aspirations for simple criteria of cognitive significance and signaled the demise of logical positivism as a philosophical movement.

Precisely what remained, however, was in doubt. Presumably, anyone who rejected one or more of the three principles defining positivism—the analytic/synthetic distinction, the observational/theoretical distinction, and the verifiability criterion of significance—was not a logical positivist. The precise outlines of its philosophical successor, which would be known as “logical empiricism”, were not entirely evident. Perhaps this study came the closest to defining its intellectual core. Those who accepted Hempel’s four criteria and viewed cognitive significance as a matter of degree were members, at least in spirit. But some new problems were beginning to surface with respect to Hempel’s covering-law explication of explanation and old problems remained from his studies of induction, the most remarkable of which was known as “the paradox of confirmation”.

Hempel’s most controversial argument appeared in an article about induction entitled “Studies in the Logic of Confirmation” (1945a), where he evaluates the conditions under which an empirical generalization would be confirmed or disconfirmed by instances or non-instances of its antecedent and consequent. He focused on universally quantified material conditionals, exemplified by sentences of the form, “\((x)(Rx \supset Bx)\)”. With “\(Rx\)” interpreted as “\(x\) is a raven” and “\(Bx\)” as “\(x\) is black”, this schema represents, in first-order symbolic logic, the claim, “All ravens are black”. He also considered sentences of more complex logical structures, but nothing hinges upon their use that cannot be addressed relative to an example of the simplest possible kind. And, indeed, Hempel took sentences of this kind as exemplars of “lawlike sentences”, which combine purely universal form with what he called purely qualitative predicates. So lawlike sentences that are true as extensional generalizations are “laws” (Hempel & Oppenheim 1948).

Hempel applied “Nicod’s criterion” to this example, where Nicod had proposed that, in relation to conditional hypotheses, instances of their antecedents that are also instances of their consequents confirm them; instances of their antecedents that are not instances of their consequents disconfirm them; and non-instantiations of their antecedents are neutral, neither confirming nor disconfirming. Applied to the raven hypothesis, this means that, given a thing named “\(c\)”, the truth of “\(Rc\)” and “\(Bc\)” confirms it; the truth of “\(Rc\)” and “\(\neg Bc\)” disconfirms it; and the truth of “\(\neg Rc\)” neither confirms nor disconfirms it, but remains evidentially neutral, regardless of the truth value of “\(Bc\)”. To these highly intuitive conditions, Hempel added that, since logically equivalent hypotheses have the same empirical content, whatever confirms one member of a set of logically equivalent hypotheses must also confirm the others, which he called “the equivalence condition”.

No matter how intuitive, Hempel proceeded to demonstrate that this creates a paradox. By Nicod’s criterion, “\((x)(Rx \supset Bx)\)” is confirmed by ravens that are black. But, by that same standard, “\((x)(\neg Bx \supset \neg Rx)\)” is confirmed by non-black non-ravens, such as white shoes! Since these are logically equivalent and have the same empirical content, they must be confirmed or disconfirmed by all and only the same instances. This means that—no matter how counter-intuitive—the lawlike hypothesis, “All ravens are black”, is confirmed by observations of white shoes! Since these hypotheses are also equivalent to “\((x)(\neg Rx \vee Bx)\)”, which asserts that everything either is not a raven or is black, it is also the case that observations of non-ravens confirms the hypothesis, regardless of their color. Observations of non-ravens, however, unlike those of black ravens, confirm alternative hypotheses, like “All ravens are blue” and “All ravens are green”. Hempel’s point was that the application of Nicod’s criterion means that, since even observations of non-ravens are confirmatory, the class of neutral instances in fact has no members.

Few papers in the philosophy of science have produced such a voluminous literature. In a “Postscript”, Hempel addressed a few of the suggestions that have been advanced to analyze the paradoxical quality of the argument (Hempel 1965a). Several were intent upon explaining them quantitatively on the ground that, for example, there are many more non-black things than black things or that the probability of being non-black is much great than the probability of being a raven, whereas others appealed to Bayesian principles and suggested that the prior probability for ravens being black makes testing non-ravens of considerably less relative risk. Hempel replied that even the existence of a quantitative measure of evidential support poses no challenge to his conclusion that the paradoxical cases—non-black non-ravens, such as white shoes—are confirmatory.

Hempel acknowledges that an explanation for why the paradoxical cases appear to be non-confirmatory may have something to do with fashioning hypotheses about classes that are affected by their relative size. Since the class of non-ravens is so much larger than the class of ravens, where what we are interested in, by hypothesis, is the color of ravens, instances of non-black non-ravens might count as confirmatory but to a lesser degree than instances of black ravens. He allows the possibility that perhaps the theory of confirmation should proceed quantitatively, which might provide a less perplexing basis for assessments of this kind. But he steadfastly maintains that the consequences he identified following from the application of the principles he employed are logically impeccable, no matter how psychologically surprising they may seem (Hempel 1960).

The most important claim of Hempel (1965a) is that confirmation cannot be adequately defined by linguistic means alone. Here he cites Goodman (1955) to demonstrate that some hypotheses of the form, “\((x)(Fx \supset Gx)\)”, are not confirmable even by instances of the kind “\(Fc\)” and “\(Gc\)”. If “\(Rx\)” stands for “\(x\) is a raven” and “\(Bx\)” for “\(x\) is blite” (where \(x\) is blite when it has been examined before time \(t\) and is black or has not been examined before \(t\) and is white), then any raven observed before \(t\) and found to be black confirms the hypothesis, “\((x)(Rx \supset Bx)\)”; yet this hypothesis implies that all ravens not examined before \(t\) are white, a consequence that, in Hempel’s language, “must surely count as disconfirmed rather than as confirmed”. And he endorses Goodman’s suggestion that whether a universal conditional is capable of being confirmed by its positive instances turns out to depend upon the character of its constituent predicates and their past use.

Goodman (1955) draws a distinction between universal conditional generalizations that can be confirmed by their instances and those that cannot, where the former are said to be “projectible”. Those that can be projected from examined cases to unexamined ones are those that have a history of past projections. Thus, the predicate “black” has many past projections, but the predicate “blite” does not. Since a history of past projections enhances the projectibility of predicates only when they are successful, the measure of a predicate’s degree of projectibility, which Goodman calls its degree of entrenchment , is the relative frequency of its successful use in past predictions. Hume observed that, no matter how consistently a regularity has held in the past, that provides no guarantee it will continue to hold in the future. Goodman nevertheless adopted the past as a guide, which qualifies as his solution to the linguistic version of Hume’s problem of induction.

Since Goodman is offering a pragmatic solution for (what most would assume to be) a syntactical and semantical problem, it may be useful to consider whether or not there might be a more promising approach. In embracing Goodman’s approach, Hempel was modifying his conception of lawlike sentences as extensional generalizations which are restricted to purely qualitative predicates which make no mention of specific individuals, specific places or specific times, but which might, in special cases, reference samples or exemplars, such as the standard meter or the atomic clock (Hempel 1965d: 269, where he also mentions Popper’s notion of universal predicates). Goodman’s account does not actually capture the concept of laws but the rather restricted notion of hypotheses that have been projected and are supposed to be laws. Laws themselves, after all, exist even when they have not yet been discovered, as in the case of Archimedes’ principle before Archimedes, Snell’s law before Snell, and Newton’s before Newton. A more promising approach lay in the direction of universals in Popper’s sense, which are dispositions with subjunctive force, where laws can be characterized as unrestricted intensional conditionals.

Popper (1965, 1968) championed falsifiability as a criterion of demarcation that is more appropriate than verifiability as a criterion of meaningfulness, on the ground that what we need is a basis for distinguishing scientific from nonscientific statements, where the latter can still be meaningful, even when they are not scientific. He suggested that laws should be understood as having the force of prohibitions, which are empirically testable by attempts to falsify them. And he observed there are no “paradoxes of falsification” to parallel the “paradoxes of confirmation”. Even in the case of material conditionals, the only falsifying instances are those that combine the truth of their antecedents with the falsity of their consequents. Relative to “\((x)(Rx \supset Bx)\)”, for example, the only potential falsifiers are instances of “\(Rx\)” that are instances of “\(\neg Bx\)”, and similarly for “\((x)(\neg Bx \supset \neg Rx)\)” and for “\((x)(\neg Rx \vee Bx)\)”, not to mention its subjunctive counterpart, “\((x)(Rx \rightarrow Bx)\)”. The absence of paradox suggested that Popper’s approach to problems of demarcation and of cognitive significance might possess substantial advantages over the alternatives.

4. Scientific Explanations

Hempel’s most important contributions to the theory of science have been a series of explications of the structure of scientific explanations. His methodology was such that, following the preliminary examination of the linguistic and physical phenomena under consideration, he would advance a semi-formal characterization, one which he would subsequently subject to formal characterization using the resources of symbolic logic. The overarching theme of his work was the conception of explanation by subsumption, where specific events are subsumed by corresponding laws (of physics, of chemistry, of biology, and so forth). The conception of explanation by subsumption is rather ancient in its lineage, but Hempel advanced explicit formulations that drew distinctions between explanations of different kinds, especially those that invoke universal (or deterministic) laws, statistical (or probabilistic) laws, and the explanation of laws by means of theories.

Hempel implemented the conception of subsumption by presuming that explanations explain the occurrence of singular events by deriving their descriptions from premises that include at least one lawlike sentence, which thereby displays (what he called) their nomic expectability . In the simplest cases, explanations assume the following form:

Figure 2. An Explanation Schema

Thus, in relation to Figure 2, \(C_1\), \(C_2\),…, \(C_r\) describe specific conditions (referred to as “initial” or “antecedent”) and \(L_1\), \(L_2\),…, \(L_k\) general laws, where “\(E\)” describes the event to be explained. The explanation takes the form of an inductive or deductive argument, where the premises are called the “explanans” and the conclusion the “explanandum”.

Richard Jeffrey (1969) noted that Hempel’s conception harmonizes well with Aristotle’s definition of (what he called) unqualified scientific knowledge ,

[where] the premisses of demonstrated knowledge must be true, primary, immediate, better known than and prior to the conclusion, which is further related to them as effect to cause. ( Posterior Analytics 1.71–2, as quoted in Jeffrey 1969: 104)

A potentially even more illuminating comparison emerges from the perspective of Aristotle’s theory of the four causes, where the laws are the material cause, the antecedent conditions the efficient cause, the logical relation between the explanans and the explanandum the formal cause and the explanandum the final cause (Fetzer 2000a: 113–114). There were important differences in their conceptions of law. Aristotle’s general premises were definitional, necessarily, whereas Hempel’s were not. The following figure shows the parallel.

Figure 3. Hempelian Explanation in Aristotelian Perspective

In the above figure, the use of the dotted line is meant to convey that the analogy applies equally to deductive arguments (which would be represented by a solid line) and inductive arguments (which would be represented by a double line with a probability value attached).

For Aristotle, the general premises of scientific explanations are generalizations that describe commensurately universal properties of things of a subject kind, \(K\). Merely universal properties are ones that everything of kind \(K\) has but could be without and remain a thing of that kind, just as every Honda might have Michelin tires. Aristotle referred to such properties as “accidental”. Commensurately universal properties are ones that belong to everything of the kind as necessary attributes that they cannot be without. A triangle, for example, has three lines and angles. Aristotle referred to them as “essential”. Because generalizations about the essential properties of things of a kind are “proper definitions”, they provide the basis for explanations that qualify as analytic. Hempel encompassed analytic generalizations within the scope of “fundamental laws” as defined in Hempel and Oppenheim (1948), but he focused on those that were synthetic.

Analytic explanations are common in the currents of daily life, especially in the context of explaining how you “know that” something is the case. A mother might explain to her single daughter that she knows that John must be unmarried, because a friend told her that John is a bachelor. Similar cases of analytic explanations can occur in scientific contexts, such as knowing that the element they are dealing with is gold because it has atomic number 79, when gold is defined by its atomic number. Knowing why John is a bachelor, however, is another matter. Indeed, in Hempel (1965c), he would distinguish between reason-seeking why-questions and explanation-seeking why-questions , where the former seek reasons that justify believing that something is the case, as opposed to the latter, which are usually motivated by knowledge that a specific event has occurred.

In his semi-formal explication of the requirements for adequate scientific explanations, Hempel specified four conditions of adequacy (CA) that have to be satisfied, namely:

These conditions are intended to serve as requirements whose satisfaction guarantees that a proposed explanation is adequate. Hempel drew several distinctions over time between potential scientific explanations (which satisfy the first three conditions, but possibly not the fourth) and confirmed scientific explanations (which are believed to be true but might turn out to be false). Hempel recognized that (CA-3) was a redundant condition, since it would have to be satisfied by any explanation that satisfied (CA-1) and (CA-2). Insofar as the explanandum describes an event that occurred during the history of the world, its derivation thereby implies the explanans has empirical content.

Hempel’s conditions had many virtues, not least of which was that they appeared to fit many familiar examples of scientific explanations, such as explaining why a coin expanded when it was heated by invoking the law that copper expands when heated and noting that the coin was copper. Hempel doesn’t specify the form laws may take, which could be simple or complex. Most of his examples were simple, such as “All ravens are black”, “All gold is malleable”, and so on. Others were quantitative, such as Archimedes’ principle (A body totally immersed in a fluid—a liquid or a gas—experiences an apparent loss in weight equal to the weight of the fluid it displaces), Snell’s law (During refraction of light, the ratio of the sines of the angles of incidence and of refraction is a constant equal to the refractive index of the medium), and Newton’s law of gravitation (Any two bodies attract each other with a force proportional to the product of their masses and inversely proportional to the square of the distance between them), which he discussed.

More complicated examples can be found in standard sources, such as The Feynman Lectures on Physics (Feynman et al. 1963–65), the first volume of which is devoted to mechanics, radiation, and heat; the second, to electromagnetism and matter; and the third, to quantum mechanics. Hempel explored the implications of (CA-4) for laws:

The requirement of truth for laws has the consequence that a given empirical statement \(S\) can never be definitely known to be a law; for the sentence affirming the truth of \(S\) is tantamount to \(S\) and is therefore capable only of acquiring a more or less high probability, or degree of confirmation, relative to the experimental evidence available at any given time (Hempel and Oppenheim 1948: note 22, italics added).

Hempel considered weakening condition (CA-4) to one of high confirmation instead of truth, but concluded that it would be awkward to have “adequate explanations” that are later superseded by different “adequate explanations” with the acquisition of additional evidence and alternative hypotheses across time. He therefore retained the condition of truth. Whether or not the conditions of explanatory adequacy should be relative to an epistemic context of confirmation rather than to an ontic context of truth would become an important question in coping with the requirements for probabilistic explanations.

No aspect of Hempel’s position generated more controversy than the symmetry thesis , which holds that, for any adequate explanation, had its premises—its initial conditions and covering laws—been taken into account at a suitable prior time, then a deductive prediction of the occurrence of the explanandum event would have been possible, and conversely (Hempel & Oppenheim 1948). Inferences from adequate explanations to potential predictions were generally accepted, but not the converse. Critics, such as Michael Scriven (1962), advanced counter-examples that were based on correlations or “common causes”: the occurrence of a storm might be predicted when cows lie down in their fields, for example, yet their behavior does not explain why the storm occurs. Sylvain Bromberger offered the example of the length of the shadow cast by a flagpole, which is sufficient to deduce the height of the flagpole and thus satisfies Hempel’s conditions but does not explain why the flagpole has that height (Bromberger 1966). Since logical relations are non-temporal, Hempel may have taken the symmetry thesis to be a trivial consequence of his account, but deeper issues are involved here.

Hempel observed that universal generalizations of the form, “\((x)(Fx \supset\) Gx )”, are true if and only if logically equivalent generalizations of the form, “\((x)(\neg Fx \vee Gx)\)”, are true. But if “\(Fx\)” stands for an uninstantiated property , such as being a vampire, then, since “\(\neg Fx\)” is satisfied by everything, regardless of the attribute “\(Gx\)”, “\(\neg Gx\)”, etc., that hypothesis—and its logical equivalents—are not only universally confirmed but even qualify as “laws”. This is not surprising, from a logical point of view, since extensional logic is purely truth functional, where the truth value of molecular sentences is a function of the truth values of its atomic constituents. But it implies that an empirical generalization that might be true of the world’s history may or may not be “lawful”, since it could be the case that its truth was merely “accidental”. Hempel’s endorsement of Goodman’s approach to select generalizations that support subjunctive conditionals, therefore, was not only consistent with the tradition of Hume—who believed that attributions of natural necessity in causal relations are merely “habits of mind”, psychologically irresistible, perhaps, but logically unwarranted—but circumvented a disconcerting consequence of his explication.

There is a fundamental difference between sentences that “support subjunctives” and those that “entail subjunctives”, when the selection of those that support subjunctives is made on pragmatic grounds. Popper captured the crucial difference between material (extensional) generalizations and subjunctive (intensional) generalizations as follows:

A statement may be said to be naturally or physically necessary if, and only if, it is deducible from a statement function which is satisfied in all worlds that differ from our own, if at all, only with respect to initial conditions. (Popper 1965: 433)

Indeed, the existence of irreducibly ontic probabilistic phenomena, where more than one outcome is possible under the same initial conditions, would mean that the history of an indeterministic world might be identical with the history of a deterministic one, where their differences were concealed “by chance”. Even a complete description of the history of the actual world might not suffice to distinguish between them, where fundamental aspects of their causal structure would remain beyond empirical detection.

The difference between Popper’s universal predicates and Goodman’s paradoxical ones may derive from the consideration that incorporating specific times into his definitions entails reference to specific moments of time \(t\), such as midnight tonight , during the history of the actual world, a point to which we are going to return. It follows that they cannot be “universal” in Popper’s sense and do not even qualify as “purely qualitative” in Hempel’s, either. Reliance upon material conditionals within first-order symbolic logic, moreover, forfeits the benefits of synthetic subjunctives. If the hypothesis, “All ravens are black”, is more adequately formalized as a subjunctive of the form, “\((x)(Rx \rightarrow Bx)\)”, where the truth of a subjunctive hypothetically assumes that its antecedent condition is satisfied, that obviates the paradox: white shoes are not ravens, and Nicod’s criteria apply Instances of “\(Rx\)” and “\(Bx\)” thereby confirm the hypothesis; instances of “\(Rx\)” and “\(\neg Bx\)” disconfirm it; and instances of “\(\neg Rx\)” are epistemically neutral, precisely as Nicod said.

5. Explanation, Prediction, Retrodiction

Hempel’s critics—both early and late—have not always shown an appreciation for the full dimensions of his explication. Michael Scriven (1959), for example, once objected to “the deductive model, with its syllogistic form, where no student of elementary logic could fail to complete the inference, given the premise” (1959: 462), when no restriction is placed on the complexity of the relevant laws or the intricacy of these deductions (Hempel 1965c: 339). Similar objections have been lodged more recently by William Bechtel and Adele Abrahamsen (2005), for example, who claim, in defense of “the mechanist alternative”, that, among its many benefits,

investigators are not limited to linguistic representations and logical inference in presenting explanations but frequently employ diagrams and reasoning about mechanisms by simulating them. (2005: 421)

Hempel’s conditions of adequacy, however, are capable of satisfaction without their presentation as formal arguments.

Hempel remarks that his model of explanation does not directly apply to the wordless gesticulations of a Yugoslavian automobile mechanic or guarantee that explanations that are adequate are invariably subjectively satisfying. His purpose was to formalize the conditions that must be satisfied when an explanation is adequate without denying that background knowledge and prior beliefs frequently make a difference in ordinary conversational contexts. Jan might not know some of the antecedent conditions, Jim might have misunderstood the general laws, or features of the explanandum event may have been missed by them both. Even when information is conveyed using diagrams and simulations, for example, as long as it satisfies conditions (CA-1) through (CA-4) —no matter whether those conditions are satisfied implicitly or explicitly—an adequate scientific explanation is at hand. But it has to satisfy all four of those requirements.

Demonstrating that an adequate scientific explanation is at hand, however, imposes demands beyond the acquisition of information about initial conditions and laws. In the examiner’s sense of knowledge Ian Hacking identified (Hacking 1967: 319), to prove an adequate scientific explanation is available, it would be necessary to show that each of Hempel’s adequacy conditions has been satisfied. It would not be enough to show, say, that one person is knowledgeable about the initial conditions, another about the covering laws, and a third about the explanandum. It would be necessary to show that the explanandum can be derived from the explanans, that those laws were required for the derivation, and that the initial conditions were those present on that occasion. (CA-1)–(CA-4) qualifies as a “check list” to insure that a scientific explanation is adequate.

Students of Hempel have found it very difficult to avoid the impression that Hempel was not only defending the position that every adequate scientific explanation is potentially predictive but also the position that every adequate scientific prediction is potentially explanatory. This impression is powerfully reinforced in “The Theoretician’s Dilemma” (Hempel 1958), where, in the course of demonstrating that the function of theories goes beyond merely establishing connections between observables, he offers this passage:

Scientific explanations, predictions, and postdictions all have the same logical character: they show that the fact under consideration can be inferred from certain other facts by means of specified general laws. In the simplest case, the type of argument may be schematized as a deductive inference of the following form [here substituting the “simplest case” for the abstract schemata presented in the original]: \((x)(Rx \supset Bx)\) Explanans \(Rc\) \(Bc\) Explanandum Figure 4. A Covering-Law Explanation … While explanation, prediction, and postdiction are alike in their logical structure, they differ in certain other respects. For example, an argument [like Figure 4 above] will qualify as a prediction only if [its explanandum] refers to an occurrence at a time later than that at which the argument is offered; in the case of postdiction, the event must occur before the presentation of the argument. These differences, however, require no further study here, for the purpose of the preceding discussion was simply to point out the role of general laws in scientific explanation, prediction, and postdiction (Hempel 1958: 37–38).

What is crucial about this passage is Hempel’s emphasis on the pragmatic consideration of the time at which the argument is presented in relation to the time of occurrence of the explanandum event itself . Let us take this to be the observation that \(c\) is black and assume that occurs at a specific time \(t_1\). If the argument is presented prior to time \(t_1\) (before observing that \(c\) is black), then it is a prediction. If the argument is presented after time \(t_1\) (after observing that \(c\) is black), then it is a postdiction. Since explanations are usually advanced after the time of the occurrence of the event to be explained, they usually occur as postdictions. But there is nothing about their form that requires that.

As Hempel uses the term, reasoning is “scientific” when it involves inferences with laws. Indeed, this appears to be the principal ground upon which he wants to maintain that explanations, predictions, and postdictions share the same logical form. His position here makes it logically impossible for explanations, predictions and postdictions to not have the same logical form. If there are modes of prediction that are non-explanatory, such as might be the case when they are based upon accidental generalizations, then they would not thereby demonstrate that the symmetry thesis does not hold for the kinds of distinctively “scientific” explanations that are the focus of his work. Scriven’s cow example, for example, does not show that the symmetry thesis does not hold for scientific explanations and scientific predictions, even if it shows that some ordinary predictions are not also ordinary explanations. But other counter-examples posed greater threats.

Indeed, in the process of drawing the distinction between explanation-seeking and reason-seeking why-questions, Hempel (1965c) proposed a different kind of symmetry thesis, where adequate answers to explanation-seeking why-questions also provide adequate answers to reason-seeking why-questions, but not conversely. That was very appropriate, since the purpose of reason-seeking why-questions is to establish grounds for believing that the event described by the explanandum sentence has taken (or will take) place, while explanation-seeking why-questions typically take for granted that we know their explanandum events have already occurred. It follows that, while Hempel’s conditions are meant to specify when we know why , they also entail how we know that .

Insofar as Hempel focused on logically equivalent formulations of lawlike sentences in addressing the paradoxes of confirmation, some may find it remarkable that he does not explore the consequences of logically equivalent formulations in relation to explanations. We tend to assume we can explain why a specific thing \(c\) is black on the grounds that it is a raven and all ravens are black. Yet we would hesitate to explain why a specific thing is not a raven on the ground that it is not black. We may refer to this as the paradox of transposition . Notice, the contention that one member of a class of logically equivalent hypotheses is explanatory but others are not generates “paradoxes of explanation” that parallel the “paradoxes of confirmation” (Fetzer 2000a). Figure 5 offers an illustration:

Figure 5. The Transposition Paradox

Even if we accept the transposed form of “\((x)(Rx \supset Bx)\)” as the basis for an answer to a reason-seeking why-question—in this case, how we know that \(c\) is no raven—Figure 5 surely does not explain why that is the case , which presumably has to do with the genes of entity \(c\) and its developmental history as a living thing. If logically equivalent forms equally qualify as lawlike—there’s no basis in extensional logic to deny it—then Hempel confronts a dilemma. In fact, by his own conditions of adequacy, this argument is not only explanatory but also predictive. It is not a “postdiction” as he has defined it above, but it appears to qualify as a “retrodiction” that does not explain its explanandum event.

Suppose Hempel were to resort to Goodman’s approach and deny that the negation of a purely qualitative predicates is also a purely qualitative predicate. That would mean that sentences logically equivalent to lawlike sentences—which have the same content—are not therefore also lawlike by invoking pragmatic differences in their degree of entrenchment and projectibility of their constituent predicates. An appeal to pragmatic considerations within this context has a decidedly ad hoc quality about it, which appears to contravene the spirit of the paradoxes of confirmation, where Hempel insists that the counterintuitive cases are confirmatory and their paradoxical character is merely psychological. Even if Hempel were to adopt this position and take for granted that one member of a class of logically equivalent sentences can be lawlike while the others are not, another difficulty arises from the use of modus tollens in lieu of modus ponens , as Figure 6 exemplifies:

Figure 6. The Modus Tollens Paradox

Here we have a more threatening problem, since there is no apparent basis for denying that an argument having this form satisfies Hempel’s criteria and therefore ought to be both explanatory and predictive . Similarly for temporally quantified arguments, where the fact that a match of kind \(K\) has not lighted at \(t^*\) would certainly not be adequate to explain why it was not struck at t , even though every match of kind \(K\) will light when it is struck, under suitable conditions! Something serious thus appears to be wrong (Fetzer 2000a).

6. Inductive-Statistical Explanation

In his studies of inductive reasoning, Hempel (1960, 1962a, 1966b) discusses the ambiguity of induction, which arises because incompatible conclusions can appear to be equally-well supported by inductive arguments, where all the premises of both arguments are true. This problem has no analogue for deductive arguments: inconsistent conclusions cannot be validly derived from consistent premises, even if they are false. Inconsistent conclusions can receive inductive support from consistent premises, however, even when they are all true. Consider Hempel’s illustration of conflicting predictions for a patient’s recovery:

This information, taken by itself, would surely lend strong support to the hypothesis,

But suppose that we also have the information:

This information by itself would lend strong support to the contradictory of (h1):

Thus, Hempel observed, (e1) and (e2) are logically compatible and could all be part of the evidence available when Jones’ prognosis is being considered. The solution Hempel endorsed was the requirement of total evidence , according to which, in reasoning about the world, arguments must be based upon all the available evidence, though he noted that evidence can be omitted when it is irrelevant and its omission does not affect the level of support. Here, when (e1) is combined with (e2), \((\neg\)h1) is better supported than (h1).

Hempel referred to statistical explanations as “inductive-statistical” in contrast with his prior discussion of “deductive-nomological” explanations (Hempel 1958). Because generalizations of both kinds are supposed to be lawlike, however, more appropriate names for them might have been “universal-deductive” and “statistical-inductive” (or, perhaps, “statistical-probabilistic”, respectively (Fetzer 1974). In formalizing these arguments, Hempel symbolized statistical premises attributing a certain probability to outcome \(G\), under conditions \(F\), by “\(P(G, F) = r\)”, where these explanations then assume this form:

Figure 7. An I-S Explanation Schema

While Hempel initially interpreted the bracketed variable [\(r\)] as the measure of inductive support which the explanans confers upon the explanandum, \(Gi\), (in conformity with the requirement of total evidence)—where the value of [\(r\)] equals that of \(r\)—it occurred to him that, since inductive and deductive explanations are typically offered on the basis of the knowledge that their explanandum events have already occurred, viewing statistical explanations as inductive arguments whose purpose is to establish how we know that they have occurred (or that they will occur) is not the correct perspective for understanding them:

the point of an explanation is not to provide evidence for the occurrence of the explanandum, but to exhibit it as nomically expectable . And the probability attached to an I-S explanation is the probability of the conclusion relative to the explanatory premises, not relative to the total class \(\mathbf{K}\) [representing our total knowledge at that time]. (Hempel 1968, original emphasis)

In order to formalize this conception, he advanced the concept of a maximally specific predicate related to “Gi” in \(\mathbf{K},\) where, when “\(P(G, F) = r\)”, then, if the premises include a predicate stronger than “\(F\)”, say, “\(M\)”, which implies the presence of more properties than does “\(F\)”, then \(P(G, M) = r,\) where, as before, \(r = P(G,F).\) Thus additional predicates could be included in the explanans of an adequate scientific explanation, provided that they made no difference to the nomic expectability of the explanandum. Including the position of the moon or the day of the week a match is struck, for example, might be irrelevant, but his condition did not exclude them. Wesley C. Salmon (1970), however, would pursue this issue by arguing that Hempel had embraced the wrong standard upon which to base explanatory relevance relations, where explanations, in Salmon’s view, strictly speaking, do not even qualify as arguments.

Salmon offered a series of counterexamples to Hempel’s approach. In the case of I-S explanations, Hempel required that the nomic expectability of the explanandum must be equal to or greater than .5, which preserved the symmetry thesis for explanations of this kind. This implied that events with low probability could not be explained. There were persuasive illustrations, moreover, demonstrating that explanations could satisfy Hempel’s criteria, yet not explain why their explanandum events occur. For example,

Most colds clear up within a week, with or without vitamin C, and similarly for neurotic symptoms. Salmon thought that this problem was peculiar to statistical explanations, but was corrected by Henry Kyburg (1965), who offered examples of the following kind:

For Hempel, a property \(F\) is explanatorily relevant to the occurrence of an outcome \(G\) if there is a lawful relationship that relates \(F\) to \(G\). If table salt dissolves in water, so does Morton’s table salt, Morton’s finest table salt, Morton’s finest table salt bought on sale, and so on. Salmon concluded that Hempel’s conception of I-S explanation was wrong.

A student of Reichenbach (1938, 1949), Salmon had adopted and defended the limiting frequency interpretation of physical probability, where “\(P(G/F) = r\)” means that \(G\) occurs with a limiting frequency \(r\) in a reference class of instances of \(F\), which has to be infinite for limits to exist (Salmon 1967, 1971). On this approach, a property \(H\) is explanatorily relevant to the occurrence of an attribute \(G\) within a reference class \(F\) just in case (SR):

that is, the limiting frequency for \(G\) in \(F\)-and-\(H\) differs from the limiting frequency for \(G\) in \(F\)-and-not-\(H\). Properties whose presence does not make a difference to the limiting frequency for the occurrence of \(G\) in \(F\) would therefore qualify as statistically irrelevant. Relative frequencies were typically relied upon in practice, but in principle they had to be limiting.

Salmon also rejected Hempel’s requirement that the nomic expectability of a statistical explanation must be equal to or greater than .5, which led him to abandon the notion of explanations as arguments. Even events of low probability were explainable within the context of Salmon’s approach, which he compared with Hempel’s approach as follows:

I-S model (Hempel): an explanation is an argument that renders the explanandum highly probable ; S-R model (Salmon): an explanation is an assembly of facts statistically relevant to the explanandum regardless of the degree of probability that results. (Salmon 1971, original emphasis)

Salmon’s work created a sensation, since Hempel’s dominance of the philosophy of science, especially in relation to the theory of explanation, now had a significant rival. The students of explanation who recognized that probabilities as properties of infinite classes posed substantial problems were few, and those who realized that Salmon’s position confronted difficulties of its own fewer still.

Salmon was ingenious in devising “screening off” criteria to insure that the properties cited in an S-R explanation were restricted to those that were statistically relevant. He may have appreciated that the available evidence was restricted to relative frequencies in finite sequences, but that could be discounted as typical of the distinction between a context \(\mathbf{K}\) representing our total knowledge at that time and the truth condition, since scientific knowledge is always tentative and fallible. A deeper problem arose from the existence of properties that were statistically relevant but not explanatorily relevant, however. If women whose middle initials began with vowels, for example, experienced miscarriages with a different frequency than women whose middle initials began with consonants—even after other properties were taken into account—then that property would have to qualify as statistically relevant and therefore explanatorily relevant (Fetzer 1974, 1981). This result implied that statistical relevance cannot adequately define explanatory relevance, and Salmon would gradually move toward the propensity approach in Salmon (1980, 1989).

The advantage of propensities over frequencies are considerable, since, on the propensity account, a probabilistic law no longer simply affirms that a certain percentage of the reference class belongs to the attribute class. What it asserts instead is that every member of the reference class possesses a certain disposition, which in the case of statistical laws is of probabilistic strength and in the case of universal laws of universal strength. On its single-case formulation, moreover, short runs and long runs are simply finite and infinite sequences of single cases, where each trial has propensities that are equal and independent from trial to trial and classic theorems of statistical inference apply.

Even this intensional explication would still be vulnerable to the problems of irrelevant properties and the modus tollens paradox but for the adoption of a condition to exclude the occurrence of predicates that are not nomically relevant to the explanandum event from the explanans of an adequate scientific explanation. This criterion, known as the requirement of strict maximal specificity , permits the reformulation of Hempel’s four conditions of adequacy by replacing the redundant empirical content condition with this new requirement (Fetzer 1981; Salmon 1989). Explanations not only display the nomic expectability of their explanandum events—which, in the case of those that occur with high probability, would enable them to have been predicted, as Hempel proposed but—more importantly—explain them by specifying all and only those properties nomically responsible for their occurrence, even when they occur with low probability (Fetzer 1992).

Bromberger’s flagpole counterexample provides a severe test of this requirement. The reason why the inference from the length of the shadow to the height of the flagpole is non-explanatory is because the length of the shadow is not nomically responsible for the flagpole’s height. Hempel’s original conditions could not cope with situations of this kind, where inferences using laws support predictions and retrodictions that are not also explanations, even though they satisfy all four. This alternative condition thus requires that the properties cited in the antecedent of the lawlike premise(s) must be nomically relevant to the explanandum or may not be included there (Fetzer 1981, 1992). The height of the flagpole, but not the length of the shadow, qualifies as nomically relevant, which resolves the quandary—at the expense of acknowledging classes of arguments that are predictive or retrodictive but not explanatory, even when they involve inferences from law(s) that satisfy Hempel’s original criteria. The reformulated conditions are:

By formulating (CA-1*) in this way, the covering law conception of the subsumption of singular events by general laws is preserved; but abandonment of the high-probability requirement led both Salmon (1971) and Alberto Coffa (1973) to question whether or not explanations still properly qualify as “arguments”. At the least, however, they would appear to be special kinds of “explanatory arguments”, even when they involve low probabilities.

These revised conditions implicitly require abandoning Hempel’s commitment to extensional methodology to capture the notion of nomic responsibility, but the benefits of an intensional approach appear to be profound. As Salmon has observed,

[on such an explication] the distinction between description and prediction , on the one hand, and explanation , on the other, is that the former can proceed in an extensional language framework, while the latter demands an intensional language framework. It remains to be seen whether the intensional logic can be satisfactorily formulated (Salmon 1989: 172, original emphasis).

This approach to explanation incorporates the causal relevance criterion, according to which a property \(H\) is causally relevant to the occurrence of an attribute \(G\) relative to a reference property \(F\)—within the context of a causal explanation—just in case (CR):

that is, the propensity for \(G\), given \(F \amp H\), differs from the propensity for \(G\), given \(F \amp \neg H\), where the presence or absence of \(H\) affects the single-case causal tendency for \(G\). The universal generalization of sentential functions like these thus produces lawlike sentences , while their instantiation to individual constants or to ambiguous names produces (what are known as) nomological conditionals (Fetzer 1981: 49–54). The introduction of the probabilistic causal calculus \(C\), moreover, responds to Salmon’s concerns by providing a formalization within intensional logic that resolves them (Fetzer & Nute 1979, 1980). Paul Humphreys (1985, 1989) has argued that “propensities cannot be probabilities” because their causal directedness precludes satisfying symmetry conditions requiring probabilities from effects to causes as well as from causes to effects (on the plausible assumption that there are no propensities for effects to bring about their causes). A more linguistically precise characterization would be that propensities cannot be ‘standard probabilities’, which has no effect on their role in explanatory contexts.

What may come as some surprise is that Hempel exposed yet another significant problem confronting the theory of scientific explanation. One of the most remarkable features of his career is that he continued to publish original and innovative studies well into his eightieth decade. Rather surprisingly, he authored a series of articles that moved away from the influential conception of scientific theories as formal calculi combined with empirical interpretations that had been characteristic of logical empiricism. In Hempel (1966a), at the time, the most widely adopted introduction to the philosophy of science (which has been translated into ten other languages), he advanced the novel explication of scientific theories as consisting of internal principles and bridge principles , where the lawlike hypotheses that distinguish theories are linked to observation, measurement, and experiment by principles expressed in various mixtures of ordinary and of technical language. Now antecedent understanding replaces explicit definability, which seems to have been, in part, a response to the demise of the observational/theoretical distinction.

Even more strikingly, Hempel (1988a,b) observed that the application of scientific theories presupposes the absence of factors that might affect the internal principles of the theory, which goes beyond the content of the theory itself. Deriving predictions and explanations from classical mechanics presupposes that bodies are being acted upon exclusively by gravitational forces, for example, where the presence of electromagnetic forces would invalidate those derivations. This is not simply a matter of conducting tests “under suitable conditions”, where the malleability of gold differs when struck by a hammer when at extremely cold temperatures (where the combustibility of paper differs when the paper is wet, and so on), which are familiar examples of the various specific conditions that must be identified in complete definitions of dispositional predicates. What Hempel noticed is that these properties may not only be affected by conditions covered by the theory being applied but involve entirely different theories. He took this to mean that the application of theories has to be accompanied by “provisos” affirming that no properties beyond those specified by the theory are present in a specific case.

The function of these provisos means that instrumentalist constructions of scientific theories as mere calculating devices and programs for the elimination of theoretical language by reduction to observational language alone are misguided and cannot be sustained. And this is because, if other theoretical properties make a difference to the application of a particular theory, then the observational consequences of that theory cannot be assumed to obtain in any instance without provisos about other theoretical properties beyond those specified by the theory, which requires separate investigation on the basis of observation, measurement, and experiment. The conditions for testing, confirming or falsifying alternative hypotheses and theories is thereby rendered vastly more complex than had previously been supposed. Strikingly, as an essential element of an adequate explanation, Coffa (1973) had advanced “extremal clauses” that assert that no factors other than those specified by the initial conditions of the explanans are relevant to the occurrence of the explanandum event. Indeed, Salmon points out that, since the application of every law involves a tacit extremal (or “ceteris paribus”) clause, any law can be protected from refutation by discounting disconfirming evidence on the expedient of claiming that, because the clause was not satisfied, the law is still correct, which is another way to accent the source of Hempel’s concern (Salmon 1989: 84–85).

These observations are related to the claim that “the laws of physics lie”, which has been suggested by Nancy Cartwright (1983). She has claimed that there are theoretical laws, which are supposed to be “simple” but rarely if ever instantiated, and phenomenological laws, which are frequently instantiated but typically if not always complex. Armstrong (1983: 137–140) draws a distinction between laws that are “iron” and have no exceptions and those that are “oaken” and have no exceptions as long as no interfering conditions are present . In his language, unless Cartwright has overlooked the possibility that some laws might be both complex and true, she seems to be saying that theoretical laws are “oaken” laws for which there are no “iron” counterparts. If that is right, then she has failed to appreciate the distinction between counterfactual conditionals (which may be true in spite of having no instances) and mere indicative conditionals (which may be true because they have no instances). The “provisos” problem implies that satisfying the requirement of maximal specificity may be more demanding than has been generally understood in the past. Either way, Cartwright’s theses appear to trade on an equivocation between the non-existence of “iron” counterparts and their non-availability: even if the “iron” laws within a domain are not yet known, it does not follow that those laws do not exist.

The publication of Thomas S. Kuhn’s The Structure of Scientific Revolutions (1962), ironically, was among the historical developments that contributed to a loss of confidence in science. Kuhn’s work, which turned “paradigm” into a household word, was widely regarded as assimilating revolutions in science to revolutions in politics, where one theory succeeds another only upon the death of its adherents. It was interpreted as having destroyed the myth that philosophers possess some special kind of wisdom or insight in relation to the nature of science or the thought processes of scientists with respect to their rationality, almost as though every opinion were on a par with every other. A close reading of Kuhn’s work shows that these were not his own conclusions, but they were enormously influential. And among the public at large and many social scientists, the tendency to no longer hold science in high esteem or to be affected by its findings has induced political ramifications that are inimical to the general good. When our beliefs are not well founded, actions we base upon them are unlikely to succeed, often with unforeseen effects that are harmful. Rational actions ought to be based upon rational beliefs, where science has proven to be the most reliable method for acquiring knowledge about ourselves and the world around us.

This study supports the conclusion that Hempel’s conception of scientific explanations as involving the subsumption of singular events by means of covering laws was well-founded, even though his commitment to an extensional methodology inhibited him from embracing a more adequate account of natural laws. The symmetry thesis turns out to require qualification, not only with respect to predictions for events that occur only with low probability, but also for retrodictions derived by modus tollens . The link that most accurately embodies the relationship between Hempel’s work on explanation and decision-and-inference, as we have seen, appears to be reflected by the Principal Principle, which formalizes the recognition that subjective (or personal) probabilities, as degrees of belief, should have the same values as corresponding objective probabilities, when they are known. The values of propensities as properties of laws, no doubt, should be given precedence over the values of frequencies, insofar as laws, unlike frequencies, cannot be violated and cannot be changed and thus provide the more reliable guide.

A recent trend presumes that the philosophy of science has been misconceived and requires “a naturalistic turn” as a kind of science of science more akin to history or to sociology than to philosophy. In studies published in the twilight of his career, Hempel demonstrated that, without standards to separate science from pseudo-science, it would be impossible to distinguish frauds, charlatans, and quacks from the real thing (Hempel 1979, 1983). Without knowing “the standards of science”, we would not know which of those who call themselves “scientists” are scientists and which methods are “scientific”, where the place of explanation remains central within the context of inference to the best explanation (Fetzer 2002). The philosophy of science, therefore, cannot be displaced by history or by sociology. Not least among the important lessons of Hempel’s enduring legacy is the realization that the standards of science cannot be derived from mere descriptions of its practice alone but require rational justification in the form of explications satisfying the highest standards of philosophical rigor.

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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• Burkhart, Ford, “ Carl G. Hempel Dies at 92; Applied Science to Philosophy ”, The New York Times (November 23, 1997).
• “ Carl Gustav Hempel Papers ”, University of Pittsburgh, University Library System .
• “ Hempel, Carl Gustav ”, New World Encyclopedia .
• Murzi, Mauro, “ Carl Gustav Hempel (1905–1997) ”, Internet Encyclopedia of Philosophy

abduction | Carnap, Rudolf | conditionals | confirmation | creationism | dispositions | essential vs. accidental properties | Goodman, Nelson | Kuhn, Thomas | laws of nature | Popper, Karl | probability, interpretations of | Quine, Willard Van Orman | Reichenbach, Hans | science: theory and observation in | scientific explanation

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