41 Finally, the discourse of legal values – the axiology of law – cannot be considered as a third discourse or part of the philosophy of law independently of the discourse on the notion of law (legal ontology) or its forms of knowledge (legal epistemology) as it is commonly considered. This would be nothing more than a prejudice inherited from the positivist conception of law and not only a prejudice, but also an obstacle. The conception that most closely corresponds to the true place that law occupies in the political-moral space – precisely because values are so central to it – that is, the postpositivist conception that we call constitutionalism or argumentative conception of law, means going beyond this methodical view of positivism of free value and considering instead the philosophy of law as a practical philosophy. which is integrated into moral and political philosophy. The universality of the concept or knowledge of law (and therefore the universality of the philosophy of law) cannot be summed up in a single categorical domain, as if it were a «natural» concept, a «criteria» or a «semantic» (i.e. scientific) concept. The idea of constructing a universal concept of law has been present in the history of the philosophy of law since antiquity (from the Greek koinos nomos and Roman ius gentium to medieval natural law and modern rational law or positivist «general legal theory»), but it has always been a truly philosophical project. The concept of law is an «interpretative concept» based on ideas and conceptions of a philosophical nature which, in legal practice and in doctrinal conceptions of law, are methodically linked to its internal justifying point of view – the prudentia iuris of the jurist.43 What is truly universal in law should therefore be the values themselves. understood as ideas.
who want to be transcendent and whose contingent(s) can be overcome (critically totalized). Particularist historical anchoring of such a practice of justification. The categorization of legal institutions and norms is contextual, always fragmented into idiographic and idiorhythmic regional circles (nation-states, legal families, cultural traditions, etc.), because norms can be abstract objects, but also individuals in the logical sense. Only values would lend themselves to true universalization, because they objectively play their justifying role and thus become authentic ideas that make legal practice rational and universalizable. The law will lose, which makes it rational if these ideas are no longer there. And to the extent that the philosophy of law tries to renounce it, to present itself as more «technical» or «scientific», it endangers its own claim to universality, which does not belong to a theoretical philosophy but to a practical philosophy. Lawyers are usually interested in the question: What is the law on a particular subject? This is always a local question, and the answers should vary depending on the specific jurisdiction in which they are asked. In contrast, the philosophy of law is concerned with the general question: What is law? This general question about the nature of law presupposes that law is a unique socio-political phenomenon, with more or less universal characteristics that can be recognized by philosophical analysis. General jurisprudence, as this philosophical inquiry into the nature of law is called, is supposed to be universal.
It assumes that the law possesses certain qualities, and it possesses them by its nature or essence as law, when and where it exists. But even if there are such universal features of law – which is controversial, as we shall see later – the reasons for a philosophical interest in their illumination remain explainable. First, there is the sheer intellectual interest in understanding such a complex social phenomenon, which is, after all, one of the most complicated aspects of human culture. But law is also a normative social practice: it claims to guide human behavior and create reasons for action. The attempt to explain this normative and rational aspect of law is one of the central challenges of general jurisprudence. These two sources of interest in the nature of the law are closely linked. Law is not the only normative area of our culture; Morality, religion, social conventions, etiquette, etc. also guide human behavior in many ways similar to the law. Therefore, part of understanding the nature of law is an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its comprehensibility depends on other normative orders such as morality or social conventions. 33And this is why the problem of unjust law, the validity of legal norms and decisions, is a transcendental problem that calls into question the entire legal category and qualifies certain decisions as «erroneous» or vitiated by defects (axiologically and therefore legally) when they inevitably prove unjust.
This aspect is recognized in topoi such as Antigone, Augustine`s magna latrocinia and the «Radbruch formula», which manifest the claim to the correctness of the law (Alexy) or claim that it is a practical system that seeks moral authority (Raz). It is the essentially totalizing and contradictory nature of the practical values associated with the legal institution – the values of justice or, more precisely, the demands of injustice28 – that allows the concept of law to draw on philosophy and what makes the philosophy of law a practical philosophy. 26Legal philosophy in the narrow or academic sense could then be defined as any formal philosophical reflection aimed at systematizing ideas that already exhibit a certain degree of reflexive categorical development within law. Here, as mentioned above, Bobbio`s general assessment of the contrast between the legal philosophy of jurists and philosophers needs to be significantly corrected. This contrast distorts the fact that any philosophy of law, whatever it may be, has always consisted in applying more or less systematic philosophical schemes to law (and it is difficult 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 that confronts any philosophy with general philosophical problems. As such, law has always been present in the ideas invented by the great general philosophers of the Western tradition, some of whom have been known since Aristotle as «practical philosophy» (politiké), which includes moral or ethical philosophy, political philosophy, and social philosophy in general. It is enough to mention the very idea of «law» (lex), whose practical application is the result of the synthesis of various categorical conceptions: moral, scientific, legal. The «persistent questions» (Hart) raised by the law are general philosophical problems, such as its origin and relationship to ideas of normativity, power, society, justice, morality, or scientific truth. On the other hand, the general preference for the legal philosophy of lawyers is unjustified. Because of their training, jurists are best placed to undertake philosophical reflection based directly on legal categories (which are imposed on them by their own methodology), which is why the academic philosophy of law has been mainly cultivated by «jurist-philosophers».
However, this in no way guarantees complete immunity to metaphysics or dogmatism. In each historical period, jurists have appropriated general philosophies when writing their doctrines (in fact, the category of law has always needed a mantle of philosophy to build its internal metatheory). It could be argued that no philosophical doctrine has been included or adapted from the field of law (Thomism, Kantianism, Marxism, Hegelianism, Pragmatism, phenomenology, neoempiricism, analytical-linguistic philosophy, hermeneutics, discourse theory, postmodernism and any other philosophical «-ism»). The examples of «applied» philosophy that Bobbio criticizes are also the work of jurists, and not just philosophers, who descend «speculatively» into the field of law. This proves that the «application» of philosophical systems itself does not merit the label of metaphysically or dogmatically prioritization – but specifically applied theses, concepts and methods.17 Legal philosophy is a branch of philosophy that examines the nature of law and the relationship of law to other normative systems, especially ethics and political philosophy. [1] [2] It asks questions such as «What is law?», «What are the criteria for legal validity?» and «What is the relationship between law and morality?» Legal philosophy and jurisprudence are often used interchangeably, although jurisprudence sometimes includes forms of reasoning that fit into economics or sociology. [3] [4] First, Holmes` legacy.