IV
Contemporary discussion of the concept of law re-
veals several diverse trends in legal philosophy. One
of the most influential is the application of the English
school of analytical or ordinary language philosophy
to the analysis of the concept of law and legal concepts.
This is best exemplified in the work of H. L. A. Hart
referred to above. This movement is strongest in Eng-
land but it now has numerous practitioners in the other
English-speaking countries. While writers in this vein
are for the most part professional philosophers whose
work appears in the philosophical journals, this move-
ment in recent years has had some influence in law
schools and its impact can be detected in the writings
of some law professors and in the pages of the profes-
sional legal journals. While acknowledging the impor-
tance of properly conducted sociological studies, ana-
lytical jurists tend to concern themselves for the most
part with such questions as the elucidation of the
concept of a legal system; the relationship between
legal and moral obligation or between law and co-
ercion; concepts of responsibility; and, finally, analyses
of legal concepts such as rights, duties, powers, and
privileges.
In the United States the interest in analytical studies
has been accompanied by a continuing influence from
the Realist movement which in its central thesis and
concern was dubious about the utility of the analytical
approach. One of the leading exponents of a neo-realist
position is Myres McDougal, who insists on the impor-
tance of law in a modern community as a creative
instrument of social change. He exhorts decision
makers in a legal system to make the fullest and most
sensitive enquiries into the social implications of their
potential decisions, and to manipulate legal rules and
principles (which he refers to as miranda) in the inter-
ests of maximizing values which serve human dignity
on the national and international scene.
America, like Western Europe, has also witnessed
something of a revival in natural law thinking. The
barbarities of European dictatorships in this century,
and in particular the hideous brutalities of the Nazi
regime in Germany, left many jurists unhappy with
the traditional positivist insistence that an elucidation
of the concept of law could not properly include a
reference to any element of morality. The positivist
view that the criteria for identifying valid law were
purely formal was thought in some quarters to be one
reason why the German judiciary for the most part
so meekly accepted the Nazi edicts. One aspect of this
antipositivist reaction has been the strengthening of
the traditional Catholic school of neo-Thomist jurists
who have been very influential in French legal philos-
ophy in the twentieth century (e.g., Jean Dabin), and
also occupy a position of importance in the United
States.
In the secular world Lon Fuller in the United States
has consistently mounted attacks on the positivist posi-
tion which are expounded in his book The Morality
of Law (1964). Fuller stresses the purposive element
in the institution of law. He argues that often human
conduct and institutions can be best understood and
can only be adequately described in terms of their
purpose. A description of the arrangement of parts in
an automobile would give us very little insight into
its social significance, if we did not include in our
description a reference to its purpose in providing
transportation. The very notion of an automobile thus
incorporates the idea that it is at least minimally fit
to fulfill a certain social function. If we transpose this
argument into the discussion of a legal system then
we can also argue that not everything which has a
certain formal stamp is to be counted as law, but only
those collections of rules which at least minimally serve
human purposes of mutual regulation in the interests
of furthering certain basic values.
The overlap between the concept of law and moral-
ity is, in Fuller's view, further demonstrated by a con-
sideration of certain conditions which a legal system
must fulfill if it is to be minimally efficient in achieving
orderly regulation of social life. So we cannot con-
template an orderly society in which all rules would
be retrospective or where all rules were secret or where
tribunals in adjudicating disputes never made reference
to the rules that they were charged with applying. But
these conditions which are necessary for law to exist
at all are at the same time attributes of the concept
of justice, and in this way what Fuller calls the “inter-
nal morality of law” exhibits a necessary connection
with minimal notions of justice.
Of late there has been a concentration of interest
by legal philosophers on the nature of legal reasoning,
and this promises a revision in the analytical approach
to the concept of law. It is now acknowledged that
legal reasoning cannot be properly described according
to a deductive or an inductive model but consists rather
of a marshalling of more or less persuasive arguments—
which is peculiar only in the way in which a structure
of authoritative precedent is intertwined with the kinds
of criteria which go into everyday moral and pruden-
tial decision making. In this way a study of legal reason-
ing involves a revival of the classical notions of rheto-
ric. Important pioneering work in this field has been
done by the Belgian legal philosophers, Chaim Perel-
man and L. Olbrechts-Tyteca in their book Traité de
l'argumentation (1958). These studies cast some doubt
on the traditional positivist insistence on elucidating
the concept of law primarily in terms of a structure
of valid rules. If more diffuse principles and maxims
play a vital role at all levels of decision making in a
legal system, one can perceive how considerations of
ethics and policy are built into the fabric of the legal
system more easily than under the traditional positivist
position. The sharp separation between law and morals
which has characterized the positivist position becomes
difficult to defend when the close similarities between
legal and moral reasoning are pointed out. In this way
contemporary studies of legal reasoning hold out some
promise of bridging the ancient division between posi-
tivist and natural law traditions.
