Arthur Ripstein (Toronto): "Philosophy As Jurisprudence: The Source of All Lawgiving"

Abstract: For much of the past century, jurisprudence has figured as a net importer of concepts and ideas from other areas of philosophy. HLA Hart’s development and deployment of a account of the relation between rules and practices works up ideas that arguably had their origins in Wittgenstein and ordinary language philosophy; Ronald Dworkin draws on literary theory and holism in the philosophy of language to equip his Hercules to resolve every possible case; Joseph Raz’s theory of authority situates itself in the context of a broader theory of practical reason, locating the concepts of both general and special jurisprudence, such concepts as authority and rights at an “intermediate” facilitative level of the general theory of practical reason. So, too, with what is frequently characterized by contrast with analytical jurisprudence as normative jurisprudence, the theory of tort law, criminal law, antidiscrimination law, and so on, is frequently as the application of moral ideas that are perfectly general in their application to other non-legal areas of life. On this approach, the theory of tort law as part of the theory of individual responsibility, or the theory of causation in tort as part of a more general account of causation, or the theory of criminal law is understood as the theory of blame, and so on. The late John Gardner provided a characteristically penetrating and fascinating version of this approach when he sought to connect personal life to private law.

My aim in this paper is not to engage with these very different views and their multiple contributions to many different questions, but rather to lay out a fundamental alternative to them. On the view that I will put forward, the proper role of the theory of law is not as an importer of ideas from other areas of philosophy, applying those ideas to the special case of an area of human life and culture that raises distinctive puzzles. Instead, I want to suggest that there is a sense in which the basic questions of philosophy always have a juridical form. They always concern what Kant in the Critique of Pure Reason describes as the quaestio iuris, the question “by what right” do we use a particular concept. The quaestio iuris is distinct from the quaestio facti, the question of what there is and what has actually happened. For Kant, the specific context in which the quaestio iuris comes up concerns the concepts of what he characterizes, following a long tradition, as “general metaphysics.”