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In The Nature of Legal Philosophy, Ratio Juris Vol. 17 No. 2 (2004), Robert Alexy defines philosophy as

general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. (Id, at 157).

In other words, the object of philosophy is ontology, ethics, and epistemology. The activity itself, that is reflection of a general and systematic nature, gives rise to the critical or normative character of philosophy, because every philosopher has to make claims as to what’s true and false, which implies the reliance on a normative framework. General reflection accounts for the analytic character of philosophy, that is, the attempt to grasp and to make explicit the fundamental structures of what is, what ought to be done, and what we can know. Systematic reflection accounts for the synthetic or holistic character of philosophy, as an attempt to “unite all of this into a coherent whole.” (Id., at 158). Legal philosophy shares the critical, analytic, and systematic dimension of philosophy in general. However, its object, the law, is more limited. How does legal philosophy relate to philosophy in general? Alexy captures the connection in four theses:

1. All problems of general philosophy can arise in the context of legal philosophy (”general nature thesis”)
2. There are problems specific to legal philosophy, due to the nature of its object (”special character thesis”)
3. There is a special relationship between legal philosophy and ethics and political philosophy (”special relation thesis”)
4. Legal philosophy is successful only if it accounts for (1), (2), and (3). (”comprehensive ideal”).

Thesis (4) is a meta-criterion and stands in contrast to the “restrictive maxim.” The “restrictive maxim” holds

first, that legal philosophy should never get involved in any genuinely philosophical problem, second, that legal philosophy should concentrate its efforts on the institutional or authoritative character of law, and, third, that legal philosophy should delegate critical normative questions to moral and political philosophy. … The choice between the comprehensive ideal and the restrictive maxim is a fundamental choice. The character of legal philosophy is determined by it much more radically than by the choice between legal positivism and non positivism … [which is] a choice inside the realm of legal philosophy (Id, at 161).

The main question of legal philosophy is: “What is the nature of law?” or in more contemporary terms “What are the necessary properties of law?” The two necessary properties are coercion and correctness, which has important consequences for the concept of law and for a paradoxical normative problem that is specific to the law. (Of course, each of these claims is highly contested.) Alexy describes the concept of law as the relation among three elements:

1. Proper promulgation (e.g., by a legislative body)
2. Social efficacy (e.g., people, by and large, follow the rule)
3. Acceptable content (e.g., the rule is not extremely unjust).

I have briefly discussed the Alexy triangle in a previous post. Prongs (1) and (2) relate to the coercion property of the law while (3) relates to the correctness property. Virtually every theory about the nature of law, for example in the context of the discussion positivism versus natural law debate can be analyzed within this framework. Positivists rely solely on (1) and (2) for their definition, natural law theorists include (3). One of the critical questions with respect to coercion is, whether conceptual reasons for its necessity (e.g., we wouldn’t call a normative system that in no instance authorizes coercion law) are backed up by practical necessities (e.g., law, as a social practice, cannot fulfill its functions, unless there is an element of coercion). The second necessary property of the law, correctness, stands in significant opposition to coercion. The necessity of coercion owes to practical necessity, defined by a means-end relation. In contrast:

The necessity of the claim to correctness is a necessity resulting from the structure of legal acts and legal reasoning. It has a deontological character. To make explicit this deontological structure implicit in law is one of the most important tasks of legal philosophy. (Id., 164).

I doubt that a concept of law that fails to take into account the tension between coercion and correctness is adequate to its object; this is an instance of the special character thesis. Of course, identifying correctness as a necessary property of law implies the rejection of positivism, which, in turn, requires us to make explicit in what way legal philosophy relates to moral philosophy (”special relation thesis”). In that context, we encounter virtually every problem of philosophy in general (”general nature thesis”). Alexy identifies three problems that the inclusion of morality can help to solve

• the problem of basic evaluations underlying and justifying the law (e.g., are the ends that laws are designed to serve external to the law)
• the problem of realizing the claim to correctness in the creation and the application of the law, and (e.g., reasoning in hard cases)
• the problem of the limits of law (e.g., invalidating extremely unjust laws).

But including morality into the law also creates a number of serious problems. For example, there are many instances in which moral claims cannot be settled by consensus. In fact, moral reasoning, because of its strongly discriminatory and “judgmental” nature, is often outright dangerous. The law as a functionally differentiated social system is a reaction to a society that could no longer be governed by moral and religious codes but required a “non-judgmental” authoritative and institutionalized decision making process. Importing moral reasoning into the law thus threatens to weaken the foundations of the law itself. Similarly, importing moral reasoning into the law confronts the law with serious epistemological problems of moral knowledge and justification. (Here is an overview of the main positions in contemporary meta ethics. See also Larry Solum’s entry on this topic.)

Alexy, as always, is insightful, and highly readable. His writings combine the best of both worlds, analytical rigor and a continental sensibility for what the problems are that really matter.

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