Philosophy in Law? A Legal Philosophical Inquiry

Michel Rosenfeld

Benjamin N. Cardozo School of Law

September 15, 2011

Cardozo Legal Studies Research Paper No. 346

Going beyond the debate between positivists and proponents of natural law, there is a controversy over whether there can or ought to be “philosophy in law” ( i.e., whether anything within the subject-matter of philosophy can also become part of the subject-matter of law). According to Luhmann’s autopoietic theory, law is a normatively closed system and accordingly remains completely independent from philosophy. Dworkin, on the other hand, asserts that constitutional law depends for its coherence and integrity on being encompassed within a particular political philosophy. This essay approaches “philosophy in law’ from a functional rather than a legitimating perspective, and concludes against both Luhmann and Dworkin that the integration of philosophy in law is interstitial and limited. The consequence of this for law’s validity and legitimacy is a likely increase in contestation and contestability. The essay concludes that by embracing pluralism as a philosophy, one can reduce and better manage contestability without ever becoming able to eliminate it.

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Date posted: September 17, 2011 ; Last revised: October 10, 2011

Suggested Citation

Rosenfeld, Michel, Philosophy in Law? A Legal Philosophical Inquiry (September 15, 2011). Cardozo Legal Studies Research Paper No. 346. Available at SSRN: https://ssrn.com/abstract=1928082 or http://dx.doi.org/10.2139/ssrn.1928082

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Michel Rosenfeld (Contact Author)
Benjamin N. Cardozo School of Law ( email )
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