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It seems to me that the task of legal philosophy today is twofold. It must keep clear its intrinsic relationship with, and dependence upon, all the truths of moral and political philosophy, not least by providing a constant critique of every form of legal philosophy that denies or distorts that relationship. And by its mastery, and its foundational explanatory understanding, of the law‘s technical instrumentarium it must remain in a position to criticize and expose – in the hope of deflecting -- every manipulation of it for purposes destructive of the common good, a good that includes but is not exhausted by the upholding of juridically cognizable rights.
Of special importance in the coming decades will be a recovery of awareness amongst legal philosophers that law‘s paradigmatic form, the ius civile, is the law of a
For Rivista di Filosofia del Diritto no. 1, 2012
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people,22 posited by a constituent act (or constitutive custom) and ongoing legislative acts of their self-determination as a people, acts which can and should be consistent with their obligations to do and respect right (human rights, as contained in the ius naturale) and their responsibilities towards other peoples and those other peoples‘ self-determination, rights and needs. Just as countless thinkers in the nineteenth and twentieth centuries too casually assumed the justice of communist notions of a propertyless community, notions inadequately attentive to the long-term conditions of a sustainable, prosperous and just society of free persons, with the result that countless millions of people suffered more or less directly from the application in their polities of these errors of practical thought, so likewise many thinkers today too casually assume (explicitly or implicitly) the justice of quasi-communist notions of a borderless humanity, notions incompatible with the long-term conditions of a sustainably just and civilly free political order and Rule of Law. Even in the short term, this kind of error of practical thought results in the kind of political community increasingly familiar, whose peoples‘ multi-cultural internal diversity of ultimate allegiances is both promoted and countered by an ever-growing apparatus of security and surveillance, a severe diminution in freedom of political and intellectual discourse, and an explosion of law-making and regulatory bureaucracy indifferent to the benefit of having a society whose self-determination takes in large measure the form of that sharing of expectations which Ulpian and Aquinas23 called common custom.
Practitioners of the philosophy of law may be especially susceptible to this kind of error, to the extent that they envision legal systems simply as sets of norms, rather than as the principles, norms and institutions adopted by a people extended in time and in territorial bounds, in more or less adequate fulfilment of its moral responsibility to do so.2
