POLITICAL PHILOSOPHY 323 



Political Philosophy and Philosophy of Law 



In order to understand the exact relation which the philosophy of 

 law bears to political philosophy it will be necessary to consider for 

 a moment the different senses in which the term " philosophy of law " 

 is used. By a philosophy of law may be meant two things: first, 

 an inquiry into the nature, or source of obligation, of the rules of 

 conduct that are enforced by the governing power; or, secondly, a 

 search for those principles which, from an ethical standpoint, should 

 be accepted as juridical. If we accept the view of the English 

 analytical school that all laws, in so far as they are laws at all, are the 

 commands of the state, an inquiry into their nature and source of 

 authority necessarily becomes a single topic of a general political 

 philosophy. If, however, following the general lead of Continental 

 schools, it is held that enforcement by the state is but an incidental 

 fact, and that, in the truest sense, laws derive their authority from 

 their inherent rationality as tested by their consonance with abstract 

 principles of right and their suitability to the civic needs of the 

 people whose conduct they control, a philosophy of the law becomes 

 in effect largely an ethical undertaking. 



In England those attempts which have been made to outline 

 ideal systems of law have usually had the practical object in view 

 of seeking to bring about immediate reform in existing laws. This 

 being so, such efforts have been generally termed " theories of 

 legislation." Upon the Continent, however, though the idea of 

 ultimately bringing about legal reforms by educating the legal sense 

 of the community may not always have been entirely absent, the 

 immediate object sought has been by no means so practical a one. 

 As Pollock says: 1 " The only strictly necessary difference between 

 our ' theory of legislation ' and a German philosopher's Naturrecht 

 is that Continental schools consider this ideal of legal institutions 

 as a thing to be contemplated in and for itself with a metaphysical 

 interest which is, as it were, cut adrift from practice; while the 

 Englishman's ideal is of something to be realized, or approached as 

 near as may be, in an actual state, for actual citizens, and by the 

 positive enactment of a legislature." 



That Naturrecht, ideal law, or philosophy of law is purely an ethical 

 inquiry is frankly recognized by Contintental writers. Lasson begins 

 his System der Rechtsphilosophie with the definite statement that 

 legal philosophy is a branch of ethical philosophy. So also Kant, in 

 his Philosophy of Law, says: " The science of right designates the 

 philosophical and systematic knowledge of the principles of natural 

 right." 2 Likewise says Friedlander, in his System of Jurisprudence 



1 "Methods of Jurisprudence," Law Magazine, vol. vn. 



2 Hastie, transl. p. 43. 



