What Is the Philosophy of Law (for a Naturalist)?

Speaker

Professor Dan Priel (Osgoode Hall Law School, York University)

Abstract

Some twenty years ago Brian Leiter argued that jurisprudence should be “naturalized.” Ever since, however, not much has been done to explain what naturalistic jurisprudence would actually look like. This has led some critics to say that naturalistic jurisprudence is a “change in the subject” or worse, a contradiction in terms. The aim of this paper is to present, at this stage in a rather programmatic way, an agenda for a naturalistic legal philosophy. I begin the paper by arguing that a naturalistic perspective implies abandoning some of the questions that have preoccupied legal philosophers for many years. These turn out to be either questions (such as “what is law?”) that are empirical in disguise, or questions (such as the normativity of law) which are not unique to law. I then put forward a positive naturalistic theory of law, which I call “artificial law theory.” As its name suggests, this view aims to be the opposite of natural law theory, while at the same time denying that contemporary legal positivism fits that role. The central idea of artificial law theory is that law is not meant to imitate morality, but rather to supplant (and sometimes improve) it. This means that lawyers are not applied moral philosophers: They should not seek to discover what morality says about promises, natural rights and wrongs, or pre-legal duties, responsibilities, and roles. Whatever those turn out to be, law, at best, takes an indirect interest in them. Law should be understood as a constructive effort to improve upon the limitations of morality. This view thus stands in opposition to a prevailing idea in contemporary legal philosophy, held across the legal positivist/natural law divide. But while this view is largely dismissive of the need for law to match morality, it insists on a stronger link between law and politics (or, legal and political philosophy), as the enterprise of law so envisioned depends on an account of legitimacy.

About the Speaker

Dan Priel joined Osgoode’s full-time faculty in 2011.  Prior to that, he was a Visiting Professor at Osgoode during the 2010-11 academic year and an Assistant Professor at the University of Warwick in the UK. From 2005 to 2007, he was Oscar M. Ruebhausen Fellow-in-Law at Yale Law School, and before that a postgraduate student at the University of Oxford, where he wrote his doctoral dissertation. He served as law clerk in the Israeli Supreme Court, and was co-editor-in-chief of the student-edited law journal at the Hebrew University Law Faculty. His current research interests include legal theory, private law (especially tort law and restitution), and he is also interested in legal history and in the application of the social sciences, in particular psychology, to legal research. His published work appeared in Law and Philosophy, Legal Theory, Oxford Journal of Legal Studies, and Texas Law Review

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