The inevitableness of legal philosophy

Legal philosophy is a disputed subject. Not only is the concept itself much discussed, but also the field it deals with. After the heydays of legal philosophy in the aftermath of idealist thinking when Kant, Fichte and Hegel developed their own versions of it, legal philosophy had a difficult stand. Many legal positivists tried to avoid it and instead coined the concept of legal theory. Thereby they wanted to avoid speculative arguments as well as the engagement with moral questions and tried to develop a scientific study of law. However, already the question whether there is a subject of legal philosophy engages in a philosophical debate and shows its inevitability. Fundamental questions about the nature of law and the status of its properties would remain unanswered, if lawyers as well as philosophers ceased to engage in it. Even speculative theories about the nature of law could turn out to be true for different arguments than the ones with which they were introduced so that it is not sufficient to criticize the speculative character of their theses. Instead one needs to discuss their merits in a philosophical debate. Answers to philosophical questions can be searched for from above, i.e. by applying general philosophical theories to law. This approach is typically taken by philosophers who are not familiar with a particular legal system. Contrary to that is an approach from below that starts from single legal norms as well as problems and looks for philosophical arguments to answer its questions. For this purpose the philosophical dimension of the current law is investigated. This is the typical approach of lawyers. Both approaches do not necessarily lead to the same questions, as not all philosophical questions are relevant for every legal system. The knowledge of a particular legal system is necessary in order to find the philosophical questions that are most relevant for it. However, the arguments remain independent of such a system and are thus philosophical in kind.

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