One Right Answer?: The Meta Edition
York University - Osgoode Hall Law School
May 8, 2011
Legal philosophers concerned with the nature of law have focused much of their attention to the relationships between law and morality. Much less attention has been paid to the question of the relationship between law and politics. In this essay I examine this question by comparing the way the relationship between law and politics is understood in two legal systems usually thought to be fairly similar - the American and the British. I argue, first, that this relationship is understood in fundamentally different ways in the two legal systems; second, that this difference is reflected in the legal philosophers of (British) H.L.A. Hart and (American) Ronald Dworkin; and third and most important, that these differences pose a challenge to attempts to identify the "nature" of law through a priori conceptual analysis. This last point depends on showing that there are different prevailing understandings of politics, and that these different understandings of politics lead, through the interaction of law with politics, to different understandings of what law is. If, plausibly, there is no right answer to the question of the nature of politics, the link between law and politics suggests there is also no right answer to the question of the nature of law. I conclude, however, on a more positive note suggesting tentatively that there might be a different way of thinking about the nature of law: not through a priori reflection on law, but through a posteriori investigation of human nature and its potential implications for law.
Number of Pages in PDF File: 29working papers series
Date posted: May 9, 2011
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