raju12031.pdf

Philosophy in Law?A Legal-Philosophical Inquiry

MICHEL ROSENFELD

Abstract. Going beyond the debate between positivists and proponents of naturallaw, there is a controversy over whether there can or ought to be “philosophy inlaw” (i.e., whether anything within the subject-matter of philosophy can alsobecome part of the subject-matter of law). According to Luhmann’s autopoietictheory, law is a normatively closed system and accordingly remains completelyindependent from philosophy. Dworkin, on the other hand, asserts that constitu-tional law depends for its coherence and integrity on being encompassed within aparticular political philosophy. This essay approaches “philosophy in law” from afunctional rather than a legitimating perspective, and concludes against bothLuhmann and Dworkin that the integration of philosophy in law is interstitial andlimited. The consequence of this for law’s validity and legitimacy is a likelyincrease in contestation and contestability. The essay concludes that by embracingpluralism as a philosophy, one can reduce and better manage contestability withoutever becoming able to eliminate it.

1. Introduction

The question of whether there is philosophy in law—whether any part of what wetake as being within the subject-matter of philosophy can also form part of thesubject matter of law—is a difficult and contentious one. First of all, it is notobvious what the question itself means. One may think that the question is the onethat figures at the base of the traditional debate between positivists and natural lawproponents.1 Or one may think that the question is whether certain legal issues areindistinguishable from certain corresponding philosophical ones, such that there isan overlap between law and philosophy. For example, what constitutes justice,equality and proportionality is a traditional philosophical question going at least asfar back as Aristotle,2 but it is also a legal question in at least certain contexts, such

1 Compare Hart 1961 (law, as such, is independent from morality) to Dworkin 1978 (law isinextricably linked to morality). In contemporary discussions, the debate between positivistsand naturalists has become more nuanced and sophisticated, with positivists incorporatingmoral evaluations within descriptive theories of law and some naturalists claiming thatmorals should guide the best interpretation of law without necessarily being decisive in termsof legal validity. See Bix 2002, 96–8.2 See Aristotle, The Nichomachean Ethics, Book V (Aristotle 2000).

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as the adjudication of constitutional equality claims.3 Or else, one may think thatthe question is whether law must necessarily derive from philosophy as Dworkinhas asserted, arguing that constitutional law cannot make sense unless it isunderstood in terms of principles of political philosophy (Dworkin 1981, 477–8).Finally, the question may also be whether law is ultimately a branch of practical orapplied philosophy. Does, for instance, legal pragmatism boil down to a practicalapplication of philosophical pragmatism in the context of legal relationships?4

The question that this essay sets out to explore is, however, a somewhat differentone: does or can philosophy inhere in law? Or, in other words, could or shouldphilosophy, in at least certain cases, figure in the very mechanics, structuring orfunctioning of law? For example, do legal determinations concerning equality orproportionality depend for their legal validity on the performance of some operationthat fits squarely within the domain of philosophy, or that qualifies as “doing”philosophy? In this context, the focus is not on overlap, but rather on incorporationof a philosophical task within the carrying out of a legal operation. If indeed suchincorporation were possible and appropriate, then it would be analogous to theneed to have recourse to the laws of physics in the course of carrying out anengineering project. Moreover, if the question regarding philosophy in law can beanswered in the affirmative—and I will argue below that it can—then the next keyquestion, which will also be addressed in what follows, concerns the implicationsof the answer to the first question for law and for legal validity.

In order to address these two questions systematically, this essay will proceed asfollows: Part I will attempt in very broad terms to put the question of philosophyin law in proper context in relation to certain familiar debates in legal philosophy;Part II will make the case for philosophy in law; Part III will lay out some of theprincipal implications of philosophy in law from the standpoint of legal validity.

2. Placing Philosophy in Law in the Context of Legal Philosophy

Legal philosophical inquiry ultimately boils down to two questions: What is law?And, what are the proper criteria of legal validity?

Law carves out a normative order that is coercive in nature. Law, in Dworkin’swords, is a social practice providing for justified uses of “collective power againstindividual citizens or groups” (Dworkin 1986, 109). Moreover, what makes coercionthrough law “justified” depends on one’s legal philosophy. In the broadest terms,arguments regarding the justification at stake revolve around the contrast between“justice according to law” and “justice beyond law.”5 At one end of this spectrum,a law is deemed just if it is consistently and fairly interpreted and implemented inaccordance with its terms. Justice according to law requires that equal cases be

3 To cite but one case, whether affirmative action based on gender or minority status isconsistent with constitutional equality depends to a large extent on whether it can bedefended as being in conformity with the dictates of justice, equality and proportionality. Seegenerally Rosenfeld 1991.4 See Posner’s (1990) elaboration of a pragmatic jurisprudence and Rorty 1991, 92 (assertingthat “judges will [. . .] not find pragmatist philosophers [. . .] useful”). See also Rosenfeld 1998,chap. 6 (providing a critical assessment of the relationship between pragmatism in philosophyand pragmatism in law).5 For an elaboration of this distinction, see Rosenfeld 1998, 89–90, 95–100.

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treated equally and hence conform to the dictates of formal justice. In addition,justice according to law may be linked to certain instantiations of proceduraljustice. For example, justice according to law may be conceived as dependent on thelaw’s pedigree. Thus, if in a democracy the constitution empowers the nationalparliament to enact laws by a simple majority vote of its duly elected members,then any norm enacted accordingly is both “law” and “legally valid.” Hence, thosewho like traditional positivists confine law’s validity to “justice according to law”in effect sever legal validity from moral validity or validity in the realm of politicalphilosophy.6

“Justice beyond law,” in contrast, determines whether a law is ultimately just orunjust in terms of conformity with relevant criteria of substantive justice ormorality. Whether a particular law may or not be valid may, but need not, dependon whether or not it is consistent with justice beyond law. For certain naturalists,law and morals are inextricably bound together such that immoral “laws”—or atleast laws that do not have a certain minimum of moral content (see Fuller 1964,33–41)—are not only unjust, but also lack “legal validity.” Justice beyond law canalso be relied upon to criticize laws as unjust without challenging the latter’s legalvalidity or to steer the legal interpretive path towards more just or morallypreferable outcomes.

In the end, whether legal validity ultimately depends on satisfaction of thecriteria of justice according to law or those of justice beyond law looms above allas an epistemological or metaphysical matter that is of limited use for presentpurposes. This seems particularly true in the current era of legal pluralism yieldinga diverse array of distinct legal norms that hardly fit within any paradigmcircumscribed by pedigree and coercive enforcement or grounded in a commonlyshared conception of morals or criterion of justice.7 It matters little, for example,whether a properly pedigreed law imposing racial “apartheid” is deemed a law inform but not in substance or a genuine law that is unjust and immoral. Indeed, thislatter distinction pales from the standpoint of one’s responsibility as a decentcitizen, legal practitioner or judge who cannot avoid confronting the “apartheid”prescription in question. On the one hand, given the relevant plural sources of law,including international covenants, jus cogens,8 and constitutional principles that

6 This is but a crude characterization as positivism itself certainly does not exclude incorpo-ration of moral precepts such as “thou shall not kill” into law. For a nuanced positivist accountthat indicates how moral precepts may be made part of the content of law from a positiviststandpoint, see Raz 1972, 823.7 If one adds “soft law” to “hard law,” judicial-made law and administrative-made law toprivate arbitrator-made law; national law to transnational one based on treaty, customarynorms, and non-governmental based law such as that emanating from lex mercatoria; and ifone accounts for the fact that even norms accepted as universal in scope such as internationalhuman rights have led to conflicts of interpretation emanating from clashing conceptions ofthe good as evinced by the controversy over “Asian values”; then it becomes apparent thataccounts of law assuming a single unified set of sources or a commonly shared vision ofmorals or justice are insufficient if not downright misleading. For a discussion of the changesproduced by the interplay between the proliferation of legal pluralism and increases inideological diversity, see Rosenfeld 2008, 415.8 Jus cogens comprises a set of preemptory norms that have a character of supreme law ininternational law regardless of treaties, ordinary customary law or state consent. See Henkinet al. 1999, 355.

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may be plausibly incorporated through interpretation in the relevant domesticconstitution, arguably the “apartheid” prescription may end up lacking legalvalidity. On the other hand, whether or not the state’s coercive “apartheid”prescription is deemed to have the “force of law” or lawless tyrannical force, itmust be equally fought and deemed an illegitimate use of state coercive powerwhatever its ontological status.

Leaving aside these larger questions, in certain instances there appears to be anoverlap between the treatment of legal and philosophical issues. As alreadymentioned, this comes up in the handling of claims arising in the context ofconstitutional equality.9 The Equal Protection Clause of the United States Consti-tution10 furnishes a good example of this as it constitutionalizes the concept ofequality (see Fallon 1989, 1205), and often requires courts to determine whetherequal treatment or equality of result is mandated in a particular case. Thisdetermination is moreover crucial and frequently determinative in affirmativeaction cases (see Rosenfeld 1991, chap. 7). Is preferential treatment in universityadmissions or public employment sometimes justified in spite of general adherenceto the principle of equality of opportunity? Do considerations of corrective ordistributive justice legitimate certain departures from equality of opportunity inpursuit of equality of result11?

In searching for answers to these questions, judges operating under as broad andopen-ended a constitutional provision as the American Equal Protection Clause—“No state shall deny [. . .] any person within its jurisdiction the equal protection ofthe laws”—must in substance engage, at least in part, in the same kind of reasoningas would philosophers considering the same questions. Although the vocabulariesused by judges and philosophers may differ to a certain extent, they would bothhave to explore the arguments for and against overriding or limiting equality ofopportunity to compensate for past wrongs or to mitigate disadvantages traceableto past unjust deprivations in the competition for scarce goods, in the context ofadherence to the postulate that all persons within the polity must be deemed to beinherently equal. How much of an overlap may be possible in any given set ofcircumstances would differ and would be contingent on the particular legal normsin play as well as on the judicial tools and accepted interpretive practices in actualoperation. Thus, for example, if the relevant constitution were to explicitly prohibitall affirmative action or affirmative action on a particular well settled ground,12 thenjudges operating thereunder would be barred from relying on sound philosophical

9 See note 3, above.10 U.S. Const., Amend. XIV (1868).11 In the landmark US Supreme Court decision in Regents of the University of California v. Bakke,438 U.S. 265 (1978) the justices on the Court articulated two positions that have framed theclosely divided decisions that would span the next several decades. The first of theseannounced by Justice Powell stipulates that the Equal Protection Clause requires equaltreatment regardless of race, thus rejecting the legitimacy of most corrective justice basedarguments for preferential treatment to redress past racial injustices. In contrast, the secondposition is perhaps best captured in Justice Blackmunn’s statement that “in order to treat somepersons equally, we must treat them differently” (Bakke, at 407). Contrary to Powell’s position,Blackmun’s stresses the appropriateness of equality of result to correct for the injusticescaused by past state sanctioned racial discrimination.12 See, e.g., State of Uttar Pradesh v. Pradip Tandon (1975) 1S.C.C. 267 (Supreme Court of India):affirmative action on the basis of caste prohibited under that country’s constitution.

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arguments to the contrary. But, on the other hand, in a setting in which allconstitutional provisions were deemed subjected to generally enshrined national orinternational values, such as dignity, then the use of appropriate philosophicalarguments would be appropriate even if they were to lead to a result contrary tothe explicit statutory or constitutional language involved.13

Whatever the overlap may happen to be, law and philosophy constitute differentpractices or, to use Wittgenstein’s concept, different “language games” (seeWittgenstein 1953, pars. 7, 23). Even if the same argument is made in a philosophyclass and in oral argument in a courtroom, the context and consequences of theargument in question vary greatly depending on whether it is made in the formervenue or the latter. For example, a judge’s conclusions may be proven to bephilosophically unwarranted and yet they would be legally binding and theywould provide a legitimate legal basis for apportioning rights and duties. Or ajudge may have to disregard a sound and prima facie pertinent philosophicalargument, because in the “language game” of law, precedents and acceptableinterpretations of statutes or constitutional provisions would trump all inconsistentphilosophical arguments. In short, the uses and connotations of the same argumentare bound to vary depending on the particular “language game” into which thesaid argument is introduced. Much like the two different games of chess andcheckers can be played on the same board, notwithstanding that each makesdifferent uses of that board consistent with its own distinct game rules, so too thesame argument may be used in diverse language games such as law and philoso-phy, but its place, import and scope is bound to differ in proportion to thediscontinuities that set apart each language game involved from the others.

The conception of law as a distinct language game meshes well with Luhmann’sautopoietic theory of law. For Luhmann, law is a self-referential systematic processthat sets up a network of communications (Luhmann 1990, 3), and that interacts asone subsystem among many—including the economic and the political—within therealm of social relations (ibid., 176–8). Each of these subsystems, including law, is,according to Luhmann normatively closed while remaining cognitively open (ibid.,229). In other words, the economic and political subsystems cannot partake orinfluence the production and application of legal norms, but they do relate to thelegal subsystem by constituting its environment (ibid., 176–8). Accordingly, thelegal subsystem, which is cognitively open, can process material coming from itseconomic or political environment, but can only do so by incorporating it withinits own normative system. Moreover, as morals and at least certain philosophicalconcerns, such as the questions surrounding equality and proportionality, also formpart of the social environment of the legal subsystem, they too are susceptible ofbeing processed within the unique normative ambit circumscribed by autopoieticlaw.

Luhmann’s account of law’s autopoietic self-enclosed normative system is veryelusive and highly abstract (see Rosenfeld 1998, 93). In the broadest terms, the corefunction of legal communications, under Luhmann’s theory, is to provide informa-tion concerning the meaning of events and, in particular, actions in relation to the

13 Cf. Princess Soraya Case, 34 BVerfGE 269 (German Constitutional Court, 1973): Courtinstitutes legal right not provided for under German Civil Code based on a notion of justicethat transcends positive law then in force.



binary code legal/illegal (see Luhmann 1990, 229–32).14 What is crucial in terms ofthe current inquiry, however, is to get a sense of the systematic process whereby aself-enclosed normative system can appropriate and redefine that which comesfrom its environment into its own language according to the rules of its ownlanguage-game. In this respect, Luhmannn’s autopoietic account of the economicsubsystem, which he characterizes as operating analogously to its legal counterpart(ibid., 230–1), seems quite illuminating.

In essence, according to Luhmann, self-regulation of the economic system isbased on the connection between needs (which fluctuate depending on factorslocated in the economic system’s environment) and a closed monetarized exchangeprocess that systematically mediates the complex interrelationship between thetotality of existing needs and the network of products and services susceptible ofcontribution to satisfying those needs. Thus, in the context of a free marketeconomy under conditions of moderate scarcity, the monetarization of all exchangerelationships provides a self-regulating system that structures an operating orderbest suited to meet existing needs.

Assuming the analogy between economics and law holds (whatever the actualconfiguration of the legal normative self-referential system may turn out to be),then the system whereby needs, desires, projects and aspirations are translated intoexchange values that cohere into a single integrated communicative code delimitedby the process of monetarization does suggest a potentially productive conceptionof the place of philosophy in law. Philosophy would thus emerge as a relevant partof the environment of law, and philosophic concerns, such as those typicallyassociated with the concepts of justice, equality and proportionality, would trans-late into vehicles incorporated into the language of law through systematic pro-cessing in terms of the latter’s closed self-referential normative apparatus. I nowturn to examining whether the analogy holds, and how it might be conceived interms that are less abstract and less artificial than those advanced by Luhmann.

3. Philosophy in Law: Transformation or Incorporation?

Before tackling the above-mentioned analogy, two brief clarifications are in order.The first concerns philosophy; the second, law as a language game.

It is important not to conflate morals or politics with philosophy. Whereas moraland political philosophy deal respectively with morals and politics (in the broadsense of the pursuit of what is good for the polity), moral and political norms donot necessarily derive from philosophy. “Thou shalt not kill” is a moral precept thatmay derive from religion or the established mores of a community and, as such, itmay be defended or promoted without reference or recourse to the language gameof philosophy. In this context, the precept in question comes within the purview ofmoral discourse and philosophical analysis of such precept or of its place withinmorals figures as a distinct metadiscourse on morals. Consistent with this, inte-gration of the prohibition against killing within the realm of law (either through apositive act of lawmaking or through extrapolation from a list of precepts and

14 Luhmann’s reliance on the binary code legal/illegal has been widely criticized as inad-equate and overly reductionist. See, e.g., Rottleutner 1989, 792. For present purposes, however,it is unnecessary to address this issue further.

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prohibitions believed to be inextricably embedded in what is constitutive of law’svery normativity)15 does not involve any incorporation or application of philosophywithin the realm of law. In short, moral and political theory come within thepurview of philosophical metadiscourse, but morals or politics as such do not.

There can be cases, however, where a moral or political precept can only bederived from moral or political theory respectively. For example, to borrowDworkin’s terminology (Dworkin 1978, 227), does treatment as an equal entailequal treatment? Suppose there is a consensus that all persons should be treated asequals, but a dispute as to whether that automatically entails equal treatment orwhether it is sometimes morally necessary or desirable to depart from equaltreatment to better vindicate treatment as an equal. In such a case, it seems thatrecourse to moral theory, and hence to philosophy, would be necessary in order tosort out plausible answers from inconsistent ones, if not to find the right answer(see ibid., 228ff.).16

In light of the preceding discussion, what I understand by “philosophy in law”is those instances, if any, in which recourse to philosophical discourse, within theambit of moral or political philosophy, is either necessary or desirable to settle oradvance an issue that has a bearing on law as a normative practice. It is clear thatpursuant to Luhmann’s conception of law as a self-referential normatively closedsystem, there is no room for philosophy in law. But is contemporary law in all itsmanifold diversity best characterized as normatively closed? To be in a betterposition to shed some light on this question, it is first necessary to take a closer lookat law as a distinct language game.

In Luhmann’s autopoietic vision, law’s function is to simplify and rationalize theextremely complex universe of social relations characteristic of the contemporarypolity. Law’s function as a normatively closed subsystem is to provide order andinsurance through the stabilization of the expectation of expectations (see Luhmann1985, 31–40).17 Thus, for instance, if I enter into a contract that requires some futureperformance with a stranger at market, I risk non-performance and face uncertainexpectations. By making contracts binding, law provides me with a certain kind ofinsurance and justifies my expectation that I will obtain either the future perfor-mance that I have bargained for or a legal remedy of comparable value to me inthe event of failure of performance. Accordingly, whatever factual uncertaintiesmay be genuinely at play, my normative expectations would be stabilized. More-over, if contractual relations are set as a paradigm, the actual content of law loomsmuch less important than legal predictability. Thus, if the law provides that theseller bears the responsibility to insure sold goods in transit against damage or loss

15 Whereas the theoretical debate pitting positivism against natural law is a philosophical one,the incorporation of either of these two positions within the practice of law does notnecessarily entail reference to philosophical metadiscourse. Thus, for example, a judge mayinterpret the law in a narrow positivistic fashion or a more expansive natural law inspiredway because she feels to do so is “right” or consistent with her polity’s judicial traditions. Insuch case, the judge is not “philosophizing,” but rather engaging in the language game of lawand perhaps also that of morals.16 Dworkin does believe that philosophy can lead to the right answer, and thus concludes, forinstance, that affirmative action is justified in certain sets of circumstances.17 The brief discussion and critique of Luhmann’s theory provided here is based on the moreextensive one found in Rosenfeld 1998, 104–13.



unless specifically provided otherwise in the relevant contract of sale, then that lawis bound to reduce unpredictability and allows for contractors to face fewercomplexities when setting out to arrange for a future exchange.

Luhmann’s focus on insurance and stabilization of expectations leaves out muchthat occupies a prominent place in the complex contemporary setting carved out bythe interplay between national, transnational, and international legal regimes. Thus,the processes of juridification of human rights and of proliferation of broadlyconceived constitutional rights, such as liberty, equality, privacy or due process oflaw, and of constitutional values or principles such as those centering on humandignity, clearly seem to exceed the bounds set by Luhmann’s conception of law. Onthe one hand, legal implementation of human rights and constitutional norms oftenrequire subordinating predictability to equity or fairness. For example, should thetraditional understanding of marriage as being exclusively between a man and awoman factor decisively in adjudication of claims for recognition of same-sexmarriage on constitutional liberty, equality, and privacy and dignity grounds18? Orshould long-entrenched precedents declaring constitutional equality and racial“apartheid” to be mutually compatible stand in the way of changing course in thewake of a major moral outcry more than a half century later19?

On the other hand, beyond juridification of moral precepts such as respect for theinherent dignity of every human being, the proliferation of human and constitutionalrights often calls for reference to contested conceptions of justice in the course ofadjudicating legal claims. Thus, in handling claims to constitutional equality, courtsmay well have to choose among contrasting views arising respectively under alibertarian conception of justice and under an egalitarian one. Assuming a relevantconstitution is not explicit on the issue, should it be understood as merely requiringformal equality or as also demanding some measure of material equality?

As this last question can only be answered properly through recourse tophilosophical reasoning or through engaging in applied philosophy,20 it stronglysuggests that contemporary law cannot be completely normatively closed to philoso-phy. In other words, philosophy cannot in all cases where relevant merely figure aspart of the environment of law as does occur in some cases. For example, it may wellbe that notions of fairness would lack cogent meaning absent recourse to thelanguage game of philosophy and that yet at the same time law could appropriatethe concept of fairness developed in its philosophical environment and subsume itexhaustively within its own normative language game. Legal fairness would thus bedistinguishable from its philosophical counterpart. There are bound to be other casesin any complex, multilayered, contemporary legal setting, however, where suchexhaustive wholesale transposition into the normative language game of law would

18 See, e.g., Minister of Home Affairs v. Fourie, 2006 (1) SA 524 (CC) (Constitutional Court,South Africa): Considerations of dignity, equality and moral citizenship led Court to recognizeconstitutional right to same-sex marriage and to instruct Parliament to enact legislation thatwould place same-sex marriage on same footing as heterosexual marriage.19 Compare Plessy v. Ferguson, 163 U.S. 537 (1896) (“separate but equal” accommodations forblacks and whites constitutional under U.S. Equal Protection Clause) to Brown v. Board ofEducation, 347 U.S. 483 (1954) (racial segregation in state run schools unconstitutional).20 See, e.g., Rosenfeld 1991 for a discussion of the contrasts between libertarian, contractarian,utilitarian and egalitarian justifications for and against affirmative action and their respectiveconstitutional implications in the context of the U.S. Equal Protection Clause.

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not be workable, and where any attempt to exhaustively confine all normativity tothe realm of law would be both impractical and undesirable. Thus, if dignity wereenshrined as an essential constitutional value, then openness to philosophicalclarification and elaboration of the concept would be bound to enrich law in at leastcertain settings and in certain circumstances. To be sure, “legal” dignity could beexhaustively circumscribed within the language game of law as fairness wasassumed to be in the preceding example. Nevertheless, in as much as law would beimpoverished by doing so, it would be better for law to become open to incorporatingsome norms as processed through the language game of philosophy.

There are many concepts that lend themselves to the same positioning involvinga normative opening of law towards philosophy as does dignity in the precedingexample. Actually, for those concepts that are thus amenable, whether or not recourseshould be had to normative openness, would ultimately be a complex contextualmatter involving the nature of the legal system and of the philosophical discourse atstake. Accordingly, in the abstract, the concept of fairness is not inherently differentfrom that of dignity in the context of the present discussion. Indeed, one could evenimagine confining fairness exclusively to the language game of law in one legalcontext, such as corporate law, while at the same time keeping it open to the languageof philosophy, in another context, such as constitutional law.21

Given that in some cases law must remain normatively open to philosophy atleast to a certain extent, how does that impact on the appropriateness of anyanalogy between law and Luhmann’s autopoietic conception of the economy asdriven by monetarization? There is no simple answer to this question as in oneimportant sense the analogy holds, and in another it does not. Moreover, to furthercomplicate matters, appearances seem bound to shift depending on whether oneplaces oneself within the perspective of law or within that of the web of socio-political intersubjective relationships taken as a whole.

The analogy holds in so far as the ultimate determination as to whether, and towhat extent, a particular philosophical handling of an issue may be legally relevantdepends on law as a normative system taken as a whole. Luhmann’s overlysimplistic binary code legal/illegal can be replaced by the code legally relevant/legally irrelevant, and, consistent with this, philosophy can be incorporated withinlaw if proven to be legally relevant. For example, if as determined within thelanguage game of philosophy corrective justice calls for affirmative action under aparticular set of circumstances, then that may be determinative under a constitutionthat leaves the matter open, but irrelevant under another that explicitly forbidsaffirmative action under all circumstances.

On the other hand, the analogy does not hold to the extent that the code legallyrelevant/legally irrelevant lacks the systematically transformative capacity inherentto monetarization. Monetarization systematically quantifies everything that comeswithin the purview of the economy as a language game by ascribing to it anexchange value in a monetary amount. Thus, even my “priceless” (to me) familyheirloom has a price within the economy, and if I were forced to sell it to feed my

21 For example, in the context of corporate transactions, “fairness” could be confined to fulldisclosure of relevant information and non-coercion whereas in the constitutional context,“fairness” would be left open ended to be determined so as to preserve and promote the equaldignity of all individuals within the polity.



children, presumably I would not be able to do so above its established marketprice regardless of my special attachment to it. In contrast, in cases in whichdetermination within the language game of philosophy is deemed legally relevant,inclusion within the language game of law would involve incorporation rather thantransformation. If a constitution enshrines the principle of equal dignity and leavesopen the question of affirmative action, then the philosophical reasoning thatwould lead from the premise of equal dignity to the conclusion that correctivejustice warrants the use of affirmative action could be incorporated withouttransformation into legal discourse. There may be differences of vocabularycoupled with the need to address the issue of legal relevance, but in substance therewould be no difference between the philosophical and the legal argument. In short,in the last example there would be nothing akin to the transformation necessarilytriggered by the process of monetarization in the context of economic relationships.

Within the strict confines of the inner perspective in the realm of law, arguably thedecisive normative step is the determination of legal relevance. From this perspec-tive, what is decisive is not any philosophical conclusion as such, but assessment ofthe latter in terms of the code legally relevant/legally irrelevant. Within the broaderperspective carved out by reference to the entire web of socio-political intersubjectiverelationships, however, from a functional or an operative standpoint, there do notappear to be any firm impermeable boundaries between law, morals and politics. Ina world in which a domestic legal system, even if confined to the scale of thetraditional nation-state, is obligated to incorporate what is prescribed by jus cogens,and to align the interpretation of its constitution and of its laws with the dictates ofuniversal human rights, what is deemed morally imperative to prevent crimesagainst humanity or to sustain an acceptable minimum of human dignity must befactored in the determination of domestic legal relevance. In other words, from thisbroader perspective, determinations pursuant to the code legally relevant/legallyirrelevant are neither purely internal to the traditional nation-state nor entirelyseverable from morals or politics. Unlike in Luhmann’s conception confining the roleof law to insurance and the stabilization of expectations, under any plausiblecontemporary conception, the determination of legal relevance cannot stand alone,severed from all other normative specifications. Instead, as captured within thebroader perspective in which it is embedded, contemporary determination of legalrelevance must derive from a dynamic confrontation between internal and externalsources of legal legitimation that are, at least in part, inextricably linked to othersources of normative validation, such as morals and politics.

Consistent with the preceding analysis, leaving aside questions of metaphysics,philosophy can, and does in any viable contemporary setting to some degree,inhere in law. Philosophy and law are thus at least partially normatively open toone another,22 and therefore some of what originates in the language game of

22 It may be objected that proper use of the language game of philosophy should be limitedto analytic discourse, and that, accordingly, recourse to philosophy for normative purposeswould be unwarranted. Without entering into debates relating to differing conceptions ofphilosophy, suffice it for now to point out that at least under some plausible conceptions,philosophical discourse may be legitimately regarded as encompassing normative as well asanalytic determinations. Thus, for example, philosophical derivation of the categoricalimperative and examination of its moral implications naturally leads to the philosophicalgrounding of certain moral precepts, such as the absolute prohibition against lying.

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philosophy can be incorporated in substance without transformation into thelanguage game of law. This leads to the following question: What relevantconsequences for law and legal validity are likely to emerge based on the aboveconclusion?

4. Philosophy in Law and Legal Legitimacy

The place of philosophy in law as understood here is likely to be interstitial in thecase of most existing complex legal systems. Indeed, a particular legal system couldconstitutionally enshrine the principle of equal dignity, which would profit fromphilosophical elucidation in the course of its implementation, and at the same timecontain certain specific constitutional prohibitions, such as one against affirmativeaction, with the consequence that the latter prohibition would trump any supportbased on a philosophical elaboration of equal dignity—no matter how strong—foraffirmative action. In other words, incorporation of philosophy in law is likely tobe rather narrow in scope, and because of that the impact of such incorporation onthe legitimacy of law is likely to be relatively limited. It is important to distinguishin this connection between a philosophical legitimation of a legal system as a wholeor in part (e.g., contract law or constitutional law) and the legal legitimacy of theincorporation of any particular fragment of philosophical discourse within thenormative discourse of law.

Dworkin, who, as already mentioned, argues that constitutional law cannot makesense unless understood in terms of political philosophy (see Dworkin 1981), doesnot appear to address this latter distinction. As I understand him, Dworkin makestwo key assertions that seem relevant in connection with the distinction I amdrawing: First, Dworkin claims that constitutional law makes no sense unless it canbe interpreted as deriving from moral and political philosophy;23 and, second,

23 From the standpoint of language games, it is not clear how Dworkin integrates philosophyand law and the principal problem in this respect seems to derive from his contemplatedtransition from “concept” to “conception” through the idealized process of judicial interpre-tation personified in the superhuman judge Hercules who is the principal protagonist of hisLaw’s Empire. Thus, for example, the U.S. Constitution through its Equal Protection Clauseconstitutionalizes the concept of equality. That concept is embedded in the language game ofmoral and political philosophy which has also generated several competing conceptions of it,e.g, libertarian as opposed to egalitarian. Now, according to Dworkin the Constitutionenshrines the “concept” of equality, but not any particular “conception” of it. It is up to judgesin the course of engaging in constitutional interpretation grounded in legal hermeneutics andcommon law reasoning centered on harmonization of precedents—hence through workapparently fully encompassed within the language game of law—to arrive at the constitu-tionally optimal conception of the relevant concept under examination. Regardless of how onewould assess Dworkin’s thesis based on empirical evidence yielded by the work of ordinaryjudges, Dworkin’s reliance on the suprahuman judge Hercules greatly complicates matters. IsHercules flawlessly weaving in and out of the two language games involved? Or does hisperfect knowledge, understanding and prescience enable him to fully reconcile the twolanguage games at stake so as to achieve full correspondence between them? In any event,ordinary judges would clearly seem incapable of achieving either of these two Herculeantasks, thus leaving unclear how the two language games on which Dworkin relies interfaceor interrelate with one another. This issue, however, need not be pursued any further forpresent purposes to the extent, as I argue below, Dworkin’s “one right answer” for every hardcase thesis only makes sense on the assumption that a particular conception of a conceptrather than the concept itself was constitutionalized in the first place.



related to this latter claim, he asserts that there is one single right answer to everyhard case.24 Whatever may be the merit of the first of these two assertions,Dworkin’s second assertion, which plays a key role in his theory, seems highlyimplausible as it could only be vindicated, if at all, by taking sides withinphilosophical discourse regarding particular highly contested concrete issues thatremain open to considerable philosophical disagreement. Thus, for example, if aconstitution purports to seek conformity with liberalism, how can one reach the onecorrect answer in a hard case involving the constitutionality of affirmative action(where the constitution protects equality but is silent on affirmative action) iflibertarian liberalism leads to a conclusion that is opposite to that reached inaccordance with egalitarian liberalism? And what if one subsumes the constitutionunder libertarian liberalism, and libertarian philosophers disagree among them-selves concerning the normative acceptability of affirmative action25?

Keeping in mind the above distinction, it is important to elucidate the nature ofthe relationship, if any, between critical counterfactual philosophical assessment oflaw and the legal legitimacy of philosophy incorporated into law. As the abovediscussion indicates, the two are logically distinct, but there may nonetheless befactual or ideological affinities or even mutual dependence between them, contin-gent upon the particulars involved. This is perhaps most obvious in cases in whichpositions emerging within the language game of philosophy—or, which is for thispurpose equivalent, within the language game of morals or politics—prompt callsfor legal reform. For example, if liberal philosophers were to reach a broad-basedconsensus that equal dignity requires legalization of same-sex marriage and thatwere used to urge legalization in a polity where such marriages happened to beillegal, then a philosophical critique of the law could lead to a change within thelatter. Moreover, such change would result in an alignment between the normativediscourse of philosophy and that of law and it may, though it need not, result inone more discrete instance of philosophy in law.26

The mutual dependence at stake above can also occur within the ongoingworkings of an established legal system as exemplified by the need to implementthe norms deriving from jus cogens, applicable human rights regimes, and broadlyphrased constitutional rights. Thus, for instance, jus cogens imposes an absoluteprohibition against torture and other cruel and inhuman treatment which bindsunder international law even a country that is not a signatory to the UN Conven-tion Against Torture (CAT).27 Although CAT defines torture (see art. 1), thatdefinition leaves much open in terms of the boundaries of cruel and inhumantreatment—a subject that could benefit from elucidation within the language game

24 For an extended critique of Dworkin’s interpretive theory and of his “one right answerthesis,” see Rosenfeld 2011, chap. 6. In what follows, I draw in part on that earlier work.25 See Rosenfeld 1991, 52–60 (detailing the libertarian argument against affirmative action)and ibid, 63–4 (detailing the libertarian argument in favor of affirmative action).26 If the philosophically prompted reform results in adoption of a new law legalizing same sexmarriage by the legislature, then at least arguably no philosophy in law would be in play. Butif such reform were pursued through judicial reinterpretation of a constitutionally establishedequal dignity principle, then there would be a palpable area carved out for philosophy inlaw.27 The Convention was adopted in 1987 and ratified by 147 countries as of 2010. See UNTreaty Collection, http://treaties.un.org.

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http://treaties.un.org

of philosophy. Under these circumstances, at least in the case of a country that isnot a signatory to CAT, the critical philosophical assessment of practices that maybe plausibly characterized as cruel and inhuman and yet legal within the relevantcountry’s domestic legal system would be relevant and should inform any appro-priate philosophy in law which the country’s legal language game could or shouldcount on to determine how to conform to the dictates of jus cogens.

There are also other cases, of course, in which no direct connection could bedrawn between critical philosophy and philosophy in law. If one concludes, forexample, as does Derrida, that law and justice are ultimately mutually incompatiblebecause all law generalizes whereas justice calls for simultaneous vindication of theuniversal and the singular (see Derrida 1992, 3), then that critical insight could notconceivably figure directly in any legitimate use of philosophy in law. Indeed, ajudge who would have to decide whether affirmative action would be consistentwith corrective justice in a particular set of circumstances would not have alegitimate choice, siding with Derrida, to refuse to decide the question based on herconviction that justice is impossible. Since that judge is compelled to decide thecase, either she avoids philosophy in law and turns to other sources for support forher decision, or she invokes elements of philosophy in law that are squarelyinconsistent with the critical philosophy that she endorses within the confines ofthe language game of philosophy.

Given the complexities identified in the course of the preceding discussion, therecan be no single answer to the question of the legal validity of any actual orcontemplated use of philosophy in law. Some cases are easy either because there isno room for philosophy in law or because there clearly is, but recourse to it oughtto be completely uncontroversial. Where the constitution forbids affirmative actionand no supranational applicable norms require it, philosophical arguments in favorof it are not legally relevant and hence not legally valid. On the other hand, if aconstitution extends freedom of religion to all religions and a court must decidewhether such freedom already granted to Christians and Jews ought to be extendedto Muslims, then, to the extent that philosophy in law may be appropriate underthe circumstances,28 the only plausible answer that it could provide would be in theaffirmative.

Leaving aside the threshold question concerning the appropriateness of turningto philosophy in a particular situation,29 this leaves basically three different cat-egories of harder cases. These are in increasing order of difficulty from thestandpoint of legal legitimacy: First, cases in which the conclusions within philo-sophical discourse to be incorporated into law happen to be unwarranted; second,

28 This would depend, for instance, on whether or not there were legally binding precedentson the definition of a religion. In the absence of such precedents, it would seem entirelyappropriate to inquire within the language game of philosophy concerning what ought tocount as a religion.29 The threshold question can certainly be hard as it may turn on contested views of whetherthere ought to be room for recourse to philosophy in law in a particular case. To the extentthat the answer turns on whether the relevant factors within the language game of lawpreclude or not an opening to philosophy in law, the task is no different than that involvedin any other interpretive controversy within the language game of law. On the other hand, ifthe answer depends on a choice among two or more contested propositions of philosophy inlaw, then the challenge is akin to those encountered in the hard cases posed by controversyover contested propositions of philosophy in law.



cases involving essentially contested philosophical concepts over which there iswidespread disagreement within the polity; and third, similar cases to those inthe second category, with the difference that the disagreement extends beyond thepolity as it concerns supranational or international norms applicable within thepolity’s legal system. Moreover, as between these three categories, the differencebetween the first and the remaining two is one of kind, whereas that between thesecond and the third is one of degree.

Cases falling in the first of these categories present more of a practical than atheoretical problem. They involve an error in philosophical reasoning or in theapplication of a philosophical proposition that becomes incorporated into law. Werethe unwarranted step confined to the language game of philosophy, it couldeventually be straightened out through further engagement in philosophical dis-course. Once incorporated in law, however, it becomes legally binding and may bedifficult to dislodge as when it becomes embedded in a judicial precedent withina common law jurisdiction.

From a theoretical standpoint, the philosophical error that has now becomeincorporated in law can be easily dealt with through further argumentation withinphilosophical discourse coupled with a convincing argument as to why the correctphilosophical conclusion should replace the erroneous one currently incorporatedinto the law. This can be illustrated through an analogy with economics in law.Suppose a country’s antitrust law is aimed at prohibiting all significant anti-competitive conduct, and that a judge accordingly decrees a particular businesspractice to be illegal upon concluding erroneously that it is anti-competitive.Suppose further, that a consensus among economists emerges, leading to theconclusion that the prohibition of the practice at stake will thwart competitionrather than help it. It seems clear in that case both that economic analysis is relevantto law and that the law ought to be changed to conform to what economic analysisproperly conducted actually prescribes.

From a practical standpoint, a philosophical error should not be much moredifficult to correct than one involving legal doctrine or the application of legalstandards. An erroneous judicial inference in the application of norms that arewholly encompassed in the language game of law, such as an applicable doctrinein contract or tort law, does lead to a binding legal result, which can be overturnedon appeal or subsequently through repudiation of precedents based on the error atstake or through corrective legislation. Correction of a philosophical error wouldseem amenable to a similar process, with the one difference that it would requirea dialogue between practitioners of the two different language games involved incontrast to cases entirely confined within the language game of law. To return to theanalogy above, just as an economist’s analysis of anti-competitiveness may bereadily “translated” for use in antitrust law, so too could a philosopher’s conclusionrelevant in law.

One may object to the analogy drawn above between economics and law on thegrounds that economics is a science whereas philosophy is not. Moreover, consist-ent with this objection, economic conclusions ought to garner a consensus, whereasphilosophical ones are likely to remain as contestable and contested as politicalones grounded in a particular ideology not shared by all those concerned. In otherwords, economic conclusions loom as authoritative in a way that their philosophi-cal ones cannot approximate.

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Upon closer examination, the above objection is much less persuasive than mayappear at first. Indeed, economics is not an exact science and economists frequentlydisagree on the diagnosis and right prescriptions within the confines of the languagegame of economics. For example, there is widespread disagreement among econo-mists over whether economic stimulus or austerity would be best suited to emergeout of the acute crisis that afflicted the United States in 2008.30 Accordingly, therelevant difference between the language game of economics and that of philosophyis at best one of degree, not one of kind. There may a greater scope of consensus ineconomics than in philosophy, but, be that as it may, as long as there is some workingconsensus in both fields, the analogy discussed above should hold. If economistsagree, for instance, that business mergers involving large companies will automati-cally have serious anti-competitive effects, then antitrust law should incorporate thatinsight and “translate” it into the language of law. Similarly, if there is a consensusamong moral and political philosophers who subscribe to the normative premise thatall human beings are inherently equal to the effect that apartheid or the “separate butequal” doctrine adopted by the U.S. Supreme Court in 1896 is inconsistent with thepremise in question, then the court involved ought to “translate” this propositioninto the case law, as it in fact did in 1954.31

The question of philosophical error is likely to be relatively minor and to pale incomparison with the problems raised by the incorporation within law of normativecontent originating in philosophical discourse regarding essentially contested con-cepts over which there is widespread disagreement within philosophy (or withinthe relevant philosophical community).32 Furthermore, the reason for dividingreliance on contested philosophical concepts into two separate categories is predi-cated on the intuition that, all else being equal, one would more strenuously objecton legitimacy grounds to being subjected to a supranational norm with which onestrongly disagrees than to a comparable norm originating within the confines ofone’s own polity.

Vigorously contested norms are common both within the confines of law to theextent that it can be conceived as a separate self-enclosed normative system andwithin other relevant normative systems to which law is normatively open, such asmorals, politics and philosophy. This leads to two key questions: To what extent do

30 See, e.g., Robert Frank, Economist v. Economist: Debating Obama’s Stimulus Program, Forbes,July 6, 2009. http://www.forbes.com/2009/07/06/economic-stimulus-obama: “When rivalcamps of economists disagree, most consumers and business managers lack sufficient spe-cialized knowledge to make an independent assessment on the merits.”31 See note 19, above. The “translation” involved need not be direct and it obviously does notdepend on citation to philosophical texts. It is quite likely that the “translation” at stake mightcomprise several levels of mediation, including absorption of the philosophical consensus intothe relevant culture. What is key, in this connection, is that the nexus between philosophy andlaw be susceptible of demonstration through counterfactual reconstruction and that the nexusin question provide the best or most plausible explanation for the reversal of jurisprudence.32 Debates among philosophers within a particular community may encompass less thanwhat is included within philosophy taken as a whole. For example, a comprehensivephilosophy of good government might well have to compare the relative benefits anddrawbacks of monarchies and of democratic republics. In some given polity, however, theprevailing philosophical, political and legal debate may be exclusively focused on democraticnorms and institutions. In the latter case, the only relevant controversies and contestedpositions would be those relating to democratic forms of government.



http://www.forbes.com/2009/07/06/economic-stimulus-obama

contested norms affect legal legitimacy? And, what difference does it make, if any,whether the contested norm is within the law as narrowly conceived as opposedto within an external normative order which is interstitially incorporated withinlaw?

In a nutshell, reliance on contested norms does affect legal legitimacy, and thechallenge to the latter increases as one moves farther away from law as narrowlyconceived and from the boundaries of one’s community and of one’s country.Before proceeding to detail this conclusion, one caveat is in order. For analyticalpurposes, each normative system involved and each source of law, national andsupranational, will be taken separately. In reality, however, any complex contem-porary legal regime depends on a cobbling together of elements from each of thenormative systems discussed above (and undoubtedly others) and on integratinglegal norms issuing from a plurality of sources. Consistent with this, to avoiddistortion, the analytic conclusions drawn below will be supplemented by a briefsynthetic account designed to suggest how the parts may fit within the whole.

Contested norms within law as narrowly conceived seem both inevitable andhighly unlikely to have a significant impact on legal validity. For example, in a legalregime where it is clearly up to the legislator to determine whether to impose aminimum wage law, adoption of such a law by a very narrow parliamentarymajority in the face of a vigorous debate among an evenly divided citizenry, mightnot lessen divisions over the fairness or usefulness of the new law. But that wouldnot have any significant effect on the law’s legal legitimacy, as a positivist pedigreetheory of legal validity would appear to be largely sufficient. As we move awayfrom the production of legal norms, and focus on their interpretation and applica-tion, greater challenges to legal validity could arise to the extent that pedigree issuesmay become open to greater challenges. Nevertheless, overall, short of attacking thelegal regime as such, challenges to legal legitimacy in the context of regularproduction, interpretation and application of legal norms ought to remain minimal.

Contested norms in the other normative systems that have an impact on law, onthe other hand, are likely to have an altogether different effect on legal validity.Take, for example, the moral debate over abortion in the context of a constitutionthat is silent on the subject but that enshrines individual liberty, equality andprivacy rights. Assume further that the polity in question is fairly evenly dividedamong those who based on their most deeply held moral and religious convictionsdeem abortion to amount to infanticide and those who are morally persuaded thata woman’s moral worth as a free and equal person requires her to have full controlover her own body and that prohibiting her from having an abortion would be anaffront to her moral worth. If under such circumstances a constitutional court mustadjudicate whether a law criminalizing abortion is constitutional, it cannot avoidthe contested moral issue, and it will inevitably antagonize one camp or the other,if not both.33

33 The judges charged with deciding the constitutionality of the law banning abortion cannotavoid the contested moral issues by seeking refuge in the realm of law as narrowly defined,by invoking, for example, textualism as their chosen criterion of constitutional interpretation.A narrow textualist approach based on the lack of explicit constitutional provision addressingabortion would not deprive the consequent decision of moral effect and would lead at leastimplicitly to a morally charged further specification of the meaning of constitutional liberty,equality, and privacy for women. The only way that the judge could completely avoid the

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Where, like in the above example concerning abortion, the relevant moral andlegal norms are inextricably intertwined and the moral norms remain highlycontested and deeply divisive, any legal determination would seem subject toserious challenges regarding legal validity. In this respect, it is not surprising thatthe US Supreme Court’s recognition of a constitutional right to abortion in Roe v.Wade (413 U.S. 113 [1973]) has been one of its most contested decisions, promptinga massive assault on the legitimacy of its role as constitutional interpreter (see Tribe1992). Moreover, the same applies in cases where the divide is over politics—in thesense of what is good for the polity—or over philosophy. The only significant likelydifference between philosophy, on the one hand, and morals and politics, on theother, in the present context, is that to the extent that the former is more abstractand more prone to being inaccessible to the citizenry at large, recourse to it mayproduce greater alienation. And greater alienation may often translate into moreextensive questioning of legal legitimacy.

The argument in support of the assertion that incorporation of philosophy in laworiginating at a supranational level is likely to lead to more legal legitimacyobjections than a counterpart set in motion at the national level is analogous to thatabove comparing philosophy to morals and politics. The supranational is moredistant and seems much less amenable to control or influence from the standpointof an affected national citizenry. Because of that, all other things being equal, acontested norm imposed from outside one’s own polity would seem subject togreater objections on legal legitimacy grounds. Up to a point, legal legitimacy canbe established based on an argument from democracy. As long as a polity as awhole has a solid basis for cohesion and lacks sources of profound existentialcleavages, it stands to reason that some contested issues would be settled demo-cratically and that those whose views had not prevailed would accept the legiti-macy of the result on largely procedural grounds. Thus, the combination of lesseridentification with supranational proponents of contested norms and less demo-cratic input into supranational policy making and norm production34 appears tomake all legal norms and, above all, philosophy in law norms coming from abroadmore vulnerable to legal legitimacy attacks.

As indicated above, an analytic breakdown such as the one just sketched is likelyto be misleading, absent a corresponding synthetic account that factors in thedynamics of the complex pluralistic legal regime prevalent in the typical contem-porary polity. Indeed, in the abstract a foreign norm looms as more contestable thana domestic one, but that need not be the case. In an ethnically or nationally dividedpolity, for example, transnational norms may well sometimes become less contestedthan national ones. It is not hard to imagine that a dispute relating to applicablelegal norms between Cataluña and Spain or Scotland and the UK may benefit from

moral issues would be if the constitution systematically dealt with them by treating abortionexplicitly and by providing legal standards for resolving differences among the contendingcamps. This would set an extremely high threshold that would be nearly impossible toachieve for both internal and external reasons. Internally, constitutional norms are unlikely toever become fully exhaustive and, externally, given the contentiousness of the issue, it wouldseem impossible to muster the requisite level of support for exhaustive ex-ante agreement onall facets of the issue.34 Consider in this connection the claim that the European Union suffers from a “democraticdeficit”: see Marquand 1979, 64.



recourse to the EU. Or, to refer to another example, in theory there would seem tobe much greater opportunity for contested philosophy in law instances at the levelof constitutional law than at that of ordinary parliamentary law. Increasingly,however, these two levels become more intertwined, and in some countries likeGermany, constitutional norms and principles have been made applicable to purelyprivate legal transactions.35

As these two examples illustrate, the analytic categories detailed above provideuseful guideposts, but the dynamics of legal relationships in the multi-ethnic,multi-national, multi-religious contemporary polity seem bound to belie neatseparations. An important consequence of this for present purposes is that signifi-cant contestability of legal validity and legitimacy will often extend all the waydown to the level of infra-constitutional majoritarian law making. Conversely,contestability need not automatically increase as one progresses from the local tothe global, and on occasion consensus may project all the way up.

In the end, philosophy in law, though interstitial, is ubiquitous as it can becomeincorporated directly or indirectly at all levels of the complex pluralistic contem-porary legal order. Moreover, at least in significant part, philosophy in law triggersor increases contestability regarding legal validity and legal legitimacy. In short,philosophy in law is inevitable, and it makes all claims to legal validity and legallegitimacy non-trivially contestable. In some cases, particularly where there is greatconvergence within the relevant polity, contestations will be easily met, but, underconditions of great divergence, serious damage to the entire legal order’s claim tolegitimacy may naturally ensue.

Contestability associated with philosophy in law cannot be eliminated, but itsscope and intensity may be markedly reduced through commitment to a particularphilosophical perspective, namely that carved out by normative pluralism. Nor-mative pluralism strives to accommodate as many competing conceptions of thegood as possible based on the belief that fostering plurality is a worthy anddesirable end.36 Consistent with that, normative pluralism may be used to achieveinclusion of as many competing perspectives as possible thus minimizing irrecon-cilable conflicts among them, and accordingly reducing—without ever being able toeliminate—reasonably available grounds for contestation of legal validity andlegitimacy. If an instance of philosophy in law could at once accommodate bothlibertarian and egalitarian liberals, then neither of the two would be prone tocontesting the validity of the resulting legal norm (though non-liberals would stillbe excluded and thus likely to contest). Furthermore, whereas detailing hownormative pluralism would operate in this context remains beyond the scope of thepresent undertaking,37 as a general rule it would seem best to combine a greaterstress on diversity at the national level with more emphasis on unity at thetransnational level. Hopefully, that would lessen contestation by prompting greateracceptance of difference among one’s fellow citizens, while at the same timesearching for common values and points of convergence across borders.

35 Pursuant to the German Basic’s law “third party effect” or Drittwirkung fundamentalrights protections extend to private party transactions. See Dorsen et al. 2010, 896.36 See Rosenfeld 1998, 199–234 for an extended argument in favor of normative pluralism.37 For a more detailed discussion, see Rosenfeld 2008.

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5. Conclusion

The preceding analysis reveals that philosophy in law is inevitable in the contextof complex modern legal systems. This means that law as a normative system mustremain normatively open, contrary to Luhmann’s autopoietic theory which positslaw as cognitively open but normatively closed. Moreover, philosophy in law mustbe distinguished from law under (moral or political) philosophy as understood byDworkin. In the case of Dworkin, when properly factoring the “one right answer”thesis, law lacks coherent meaning unless interpreted in terms of a particular moralor political philosophy. Instances of philosophy in law, in contrast, are internallyincorporated within law, are interstitial, and are unlikely to be amenable to beingcollectively harmonized into a single comprehensive normative theory within thelanguage game of philosophy. As a consequence, philosophy in law opens therange of opportunities for contestation of legal validity and legal legitimacy in anysetting marked by significant disagreements regarding ideology, morals, politicsand law. Finally, I have suggested that recourse to normative pluralism may helpreduce the areas and intensity of contestation. That may be achieved through arecasting of poles of unity and of poles of difference within the relevant socio-political and legal space. However, any further inquiry into how exactly that mightbe accomplished so as to bolster law’s legitimacy under current circumstances willhave to be put off till another day.

Benjamin N. Cardozo School of Law55 Fifth Avenue, Room 1002

New York, NY 10003U.S.A.

E-mail: [email protected]

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