When people hear that I studied both law and philosophy and that I still maintain a presence in both, most do not know what to make of it. This combination does not make sense to them. Some of them react as if I have lost my way, as if I have veered in an act of youthful indiscretion or ignorance from the path of what is useful and straight forward. It makes even less sense to them that I would return to philosophy after having been an attorney. At best, they are willing to concede that philosophy might offer useful gymnastics in preparation for cerebral challenges as a lawyer. They share this view with many academic institutions that view a basis in philosophy as a good stepping stone for the study of law. These points of view are not altogether wrong. I understand why so many lawyers disavow a part for substantive philosophy in their practice, why they relegate it to the function of a tool, and why institutions whose task is to ready students for that profession tow the same line. I agree that a good lawyer should not let personal attitudes interfere with the representation of legal interests. Such an interference could make such a lawyer ineffective. Aversion toward a represented cause might result in work of lower quality. Even a positive interest might be harmful because it might cloud a lawyer’s professional judgment. Either way, lawyers might try to replace or amend the judgments of clients or other parties to whom they argue with what they deem the outcome should be. They might neglect their clients’ best interests as determined by these upon information about the legal ramifications of their situation and conduct.
Arguably, conflicts of interest could be avoided by only representing clients with whose position an attorney can identify. Yet if all lawyers attempted to avoid conflicting interests with clients and limit the practice of law to matters matching their personal convictions, a large number of interests might remain unrepresented or underrepresented. Would that be so bad? Maybe some interests that no or only few lawyers would be willing to represent are not worth being represented, are not worth succeeding. Beyond the potential problems such restrictions of representation might wreak for an attorney’s ability to make a living, what is so important about giving representation to disagreeable positions? Is this not what brings lawyers into disrepute with the public? Is it not what makes them appear unprincipled and without scruples, as hired guns who are ready to serve anybody who is willing and able to pay them? The answer to all these questions is that in competent legal work only the law and its application can matter, not the opinion of lawyers what the law should be. That is for a society to decide. The absence of lawyers’ personal interest in causes they represent ensures that matters find resolution with the closest fidelity to the intent of laws. Where laws give leeway, their intent is that parties subjected to them may use it. Beyond matters of professional functionality in a society organized by the rule of law, the interjection of personal opinion by lawyers seems to be of no particular value. They seem to be no more qualified to pass judgment on the value of another person’s cause than any other human being. They are not any more immune to be subject to variety in their needs and wishes than other individuals. These conditions additionally require them to hold back their personal opinion. The issue is not how their needs and wishes correspond to the law, but how their client’s needs and wishes relate to that standard. I therefore accept that I must keep my philosophical opinions separate from my representational activities as an attorney. In that work, I must be focused on trying to obtain the best result possible for clients in application of the law within its ordained scope.
By these standards, one could have the impression that law and philosophy have little in common. But the practical neutrality of lawyers in the application of law is not a typical indication for how these matters relate. To understand that relationship, one must examine the creation of law and philosophy. The purpose of philosophy has been historically in large part to explain how our world works, what its organizing substances and principles are. Even organizing substances fall in the category of principles because they are definable by principles. Hence, it is a basic purpose of philosophy to find laws. Another part of philosophy has been the application of such laws. Most of both preoccupations have since split off into various disciplines of objective science. If we still regard these as philosophical inquiries in a wider sense, we may conclude that they afford philosophy objective authority and make its positions unobjectionable in many respects. That may be so upon the proof of natural laws. But the application of such laws has found only limited objective corroboration. In as far as the application of natural laws is scrutinized under technical considerations, scientific provability prevails because it constitutes a mere combination of laws. Yet that seems to change when one looks at why humans make or do not make or should or should not make certain applications of natural laws. These issues seem to be in the realm of discretionary processes and thus markedly different from the strictness that defines the character of natural laws. Human decisions of application may be regarded as free. This may fill us with self-confidence and fulfill other desires. But we may also wonder whether unprincipled activities do not harm us or whether principled behavior might not assist us, particularly given that the natural world seems to be so strictly ruled by laws. Certainly, human law must take cognizance of and condition itself in consideration of these immutable laws of nature. Still, we may regard human law as a higher level of law that is not necessarily dependent on laws of nature. Arguably, the task of human law is the allocation of natural substances and laws according to what suits humans best. The consideration of what suits humans best, however, is of an inherently philosophical character. As our understanding of natural mechanisms grows, we still have to find out what we should do with the knowledge and other capacities we gain. Since humans are natural phenomena, what is best for them should lend itself to scientific insight as well. With many natural sciences departed, philosophy has become largely a science that tries to define the objectives to which human existence should aspire. Philosophy should help us determine what we should want and understand why we should want certain objectives and should want them more than others. The law cannot fulfill that function. Its task is to state and implement results of pertinent philosophical considerations. It is an instrument to manage our pursuits by ourselves and with other humans once we have decided our philosophical stance or others impose their stance on us.
In the absence of externalized prescriptions and proscriptions of pursuit, law would consist of determinations we propound for ourselves to maximize the satisfaction of our needs and wishes. At that stage, law and our philosophy are indistinguishable. We might not even have a philosophy in terms of an ordered, lasting set of considerations and results. Whatever we perceive, feel, or think at the time might represent our philosophy in as far as it guides our behavior. In all likelihood, we will conceive of some value in deriving continuing principles of conduct by ordering our priorities and our manners of pursuit for their greatest overall effect. But we remain the arbiter of whether to invoke such rules over our conduct. We impersonate the law. This immediacy must change in the correlation among the philosophies of individuals. Because they are determined by individual needs and wishes, philosophies may vary among individuals with differences in their personality and circumstances. These differences can make it difficult to arrive at laws that satisfy participating individuals. But at the same time, laws seem to be indispensable to regulate the peaceful coexistence and cooperation of individuals. In primitive societies, rulers may continue to personalize the law as their determination. But participants in a shared situation will usually insist that the behavior of others will be made predictable to protect them from offensive incursions and defensive behavior and to permit them to conduct cooperative constructive activities. To establish a viable basis for these objectives that benefit all participants, they may have to and be willing to curb their philosophies. Philosophies may already carry an arrangement with others as a genuinely desired element. Yet, unless individuals spontaneously behave harmoniously, a stable coexistence and constructive coordination among them require the compromising of their philosophical attitudes toward their own and other individuals’ needs and wishes. Individuals enter compromises of their philosophies in exchange for greater benefits of such compromises in the coexistence or cooperation they enable. To make such a deviation from their principles or their unprincipled affinities reliable, compromises must be declared and enforceable. Even individuals whose philosophy intrinsically induces them to treat others as they would be treated in a compromise may have to be subjected to such rigors to remain consistent. Further, enforceable declarations may be required even where individuals hold the same philosophy. Although they have the same objectives, they pursue these objectives for themselves and therefore are potential adversaries. Consequently, individuals in a society commonly take recourse to law as an imposition that safeguards their coordination and cooperation by declaring and imposing these.
Individuals subject to a legal order often desire equality under the law regardless of differences in their needs and wishes. That may be sourced in the deemed practical requirement to compromise individual philosophies to where the rights and duties attributed to their carriers become unified. Another aspect of equality may be infused because individuals may perceive humans equally entitled to protection or support due to their shared characteristics. Referring to the commonalities of humans, including common needs and wishes or aspects of needs and wishes, they may go so far as to argue that it is unjustifiable for others to claim resources or to conduct themselves differently than others. That stance may be opposed by those who are more able to secure resources or conduct themselves differently, or by those whose wishes and needs deviate from the common median. As long as their demeanor does not affect others negatively, it may not seem to be a valid subject for regulation among individuals. Individuals who wish to circumvent equality even though they negatively affect others may attempt to set types and levels of equality to where these best secure their desires. They may try to limit equality to procedural equality in a way that preserves substantive advantages their motivations and capacities give them. These may place them in a superior position to resist pressure for equality. Calls for equality may also have to contend with demonstrations of inequality in individual dispositions. But considerations in favor of equality seem to gain validity to the extent an overproportional attribution of resources or latitude to wield them to one individual results in underproportionality for another. Even without limited resource availability, an organization among individuals who are in contact with one another may appear necessary on terms of equal protection against negative effects of one another’s actions. Legal orders may further exceed foundations of law that embody noninterference and include rights to positive procedural and substantive assistance to erase or mitigate inequality by using surplus achieved by superior motivation or capacity of others.
Choices among these configurations may depend on the relative involvement of individuals in a society in defining a legal order. That involvement may depend on relative resources, particularly those to impose, manipulate, or outright convince others. Yet, ultimately, all positing and acceptance that go into the establishment and maintenance of a legal order depend on how participants choose to interact with the world, including other philosophies, based on their philosophy. The fact that the establishment and maintenance of a legal order requires a curtailment in the expression of individual philosophies or at least an enforceable codification of the genuine results of philosophies may imply that philosophy from then on becomes subordinated to law. However, the reverse remains true. Law is subordinated to philosophy because the willingness to create and uphold it derives from participants’ considerations of how well it meets their objectives. Participants must be able to justify rules in relation to their needs and wishes to abide by them. Their decision whether to follow principles is guided by whether they deem that tolerance of these principles benefits them more than noncompliance. Moreover, unless they are in principal agreement with a law be-cause they genuinely agree or regard it as part of a compromise that they consider a fair exchange, they will view it as an illegitimate imposition. Although they may agree to it to preserve resulting benefits, they may reject its justification and view it as extortion. Even a fair compromise may be subject to continuing or subsequently arising pressure. The less a law is compatible with participants’ philosophies, the more will they try to change or escape it. Opposing powers at the time of its creation may continue their opposition. As power shifts, pressures on the constitution of the law or on its application change as well. Even if a legal order represents the state of agreed philosophical development or its compromise at that time, philosophical developments may progress or recede and place similar pressures on a legal order. That may be regrettable and must be resisted if laws that incur such pressure represent a more advanced state of human development. But change may also be necessary to reflect or give guidance to such development until the best manner of organizing human existence has been established and implemented.
The imperfected state of philosophical insight places law into a difficult situation. To mend shortcomings in philosophical insight or individuals’ dedication to follow such insight, law must assume a governing position over philosophies. During humanity’s philosophical development, it can secure philosophical achievements and consolidate the ground for further developments. To serve that function and to preserve the peace and cooperation among individuals, it must embody op-position to unwise devolvement. That is its essential function. Nevertheless, it must remain open to permit changes that would improve on it. Because the institution and maintenance of law is a function of and serves philosophy in its development, the priority of that development must prevail. This relationship is in danger of being lost once law is established because its central task is to secure the agreed state of philosophy. It might not distinguish between devolving and evolving pressure and suppress the expression and application of all deviating philosophies. Allowances for development may be difficult or impossible to make for it because this may require it to anticipate further developments of philosophy. And yet, an undue hardening of legal order must be prevented to maintain law as a legitimate reflection of participants’ philosophies as these develop. To allow advancement, a legal order may unavoidably also open itself to devolving philosophies that might use the same procedures. Hence, a legal order may have to ultimately rely on philosophical discretion of participants. Any other stance seems futile. Law cannot prevail against the pressure of a sufficiently supported philosophy. It may only be able to procedurally delay their enactment, render changes obvious, and thus provide occasions for reflection. These features may be applied to all changes as safety measures. But they seem to favor advancement over devolvement because they force consideration of changes.
If philosophy is to reign supreme, and if it is to develop to its potential in the most effective and efficient manner, individuals must also remain free to disagree and abstain from legal commitment. That does not mean that such individuals could continue to occupy a place in which they apply their judgment to matters affecting others in lieu of arranged resolutions without consequences. They would have to take leave to another setting entirely or face the difficulties of individually arranging themselves with others regarding excluded matters. There may be a strong temptation in participants of a legal arrangement to compel dissenters to abide by their philosophy and its expression in law. Even dissenters may sense and succumb to such a temptation. Hence, law may cynically triumph over philosophy and inhibit its supremacy. In the interest of development, this must be prevented and where it exists must be mitigated and resolved by allowing individuals to organize according to their philosophies. If parties in a situation that calls for an arrangement among them are unable to arrive at an acceptable compromise, they must have a right to depart from one another’s company to pursue their philosophies undisturbed. To prevent overreaching by one philosophy over another, acute incidents of interference would until the parties are able to dissociate have to be resolved by a temporary compromise that minimizes damage. Since all parties have an equal right to live pursuant to their philosophies, their dissociation would have to occur on equal terms that do not disadvantage any participants. That individuals once expressly consented to a legal order or impliedly consented to it by availing themselves of its benefits does not require them to abandon campaigns for change. Nor does it prevent them from leaving a society with whose legal stance they have come to disagree, provided that their departure does not leave them with unfair advantages or others with unfair damage.
Arguably, the prerogatives of change and dissent are only valid as long as there exists no philosophy of what serves humans best as a matter of objective science. That such a philosophy can be attained seems possible given that humans and all of their implements have emerged from natural laws and their affairs thus should be explainable in terms of such laws. However, premature assertions of objective validity by philosophies pose a grave danger because they claim universal applicability and may not countenance dissent. In them, the threat of obstruction inherent in law may take on extreme heights. The inclination to assert objective applicability of human law is inherent in philosophy. Its scientific ambition is to have human law join the laws of nature and objective procedural laws of logic that philosophy can discern to impart a comprehensive normative setting. Although a unification of norms seems to be possible, human law is fallible and must be viewed with the reservation and humble openness of an unproven, speculative hypothesis until it can be established as a matter of science. That holds true even if such philosophies apply scientific methods of speculation that reveal their premises and argument and require proof on a theoretical and ultimately a practical level. They still do not provide indisputable authority until they can be soundly reduced to natural substances and laws. Most speculative philosophies are additionally suspect because they at least in part do not apply scientific methods of argument and are given to replace or supplement their lack of scientific accomplishment with conclusory assertions and manipulatory slights of hand. Such speculative philosophies are dangerous and their fraudulent nature must be revealed. But it would be counterproductive and unrealistic to shun all speculative philosophies and laws derived from them until the time a proven scientific solution has emerged. Speculative philosophy may give rise to such a solution. Humans have a right to improve their state pending a scientific solution. If a speculative philosophy can convince individuals during that phase that it contains useful norms, they must be free to shape their circumstances accordingly. But the insecurity of such constructs is too great to allow their direct or indirect imposition on others. Further, they and the legal strictures they create must be understood as experimental and provisions must be limited in their insistence and impact to make room for improvements or alternatives as necessary or useful.
Not all foundations of law may be speculative. Some scientific foundations may be established as general fundamental principles for the survival and well-being of humans. But humanity may still have much work to do in detailing them and their interactions. Without scientific proof, we are still mired in and may only be slowly escaping from the dark ages of humanity by trial and error. An enduring insecurity in the objective foundations of law and their correlation places intense responsibility on anybody creating philosophies and implementing laws to tread carefully. But it places a particular duty on humans in their imposition of philosophies and laws without the consent of others. Only indisputable omnipresent human requirements that can be established by objective standards of proof may be exempted from the prohibition to impose on others. Beyond that, the risk of erroneous or willful abuse in their assertion requires a deferment of a supersession of individual freedom to clear extremes. One would also have to consider whether the objectives and consequences of imposition justify it and whether other ways might be more successful.
In the absence of scientific proof of its underlying philosophy, the legitimacy of law is measured by how well it corresponds with the philosophy of its subjects. A sufficient number of willing participants that support a legal order forms somewhat of an indication that a law and the underlying philosophy reasonably benefit these participants and thus are compatible with or even constitute scientific proof. But broad acceptance does not guarantee that it is justified nor that the accepted solution is the best possible. In fact, error may become more sustainable and more difficult to detect, at least for the time being, as larger numbers of individuals succumb to it. To competently consent, participants must have developed a philosophy so they can determine the aptitude of a law in reaching their objectives. Besides technical aspects, they must be able to assess the underlying philosophy of a law. But only rarely may subjects of laws autonomously muster or be prompted to cultivate adequate motivation to derive a philosophy.
This lack of sophistication in a vital aspect of individuals’ lives begs the question why that is so. Arguably, they might be disoriented by the insecurity of speculative philosophies, including constructs of their own. But that may not be a true argument because they might not even attempt to investigate external philosophies to select one or a combination of them. Nor might they reflect on their needs and wishes and survey a comprehensive system of their objectives or to review philosophies to derive their own. Nor would such an argument be a valid explanation for their broad lack of considered philosophical identification. Even if philosophy has not been able to provide a comprehensive answer to the question what serves humans best, it has prepared useful foundations and partial answers and approximations that could be adopted without risk of error. It has also from its earliest existence on included a critical method that could serve individuals well in determining the legitimacy of laws. Some of the lacking absorption of such philosophy may be explained by underdevelopment. Much might also be explained by the related fear that the lack of firm answers provokes. Individuals might try to avoid being exposed to the difficulty of searching for answers and to the frustration of continuing insecurity. They might wish to take refuge in speculative philosophies that purport to provide guidance over their ignorance without probing these and finding their deficiencies. They might also blindly adopt a philosophy that dominates their environment as an extension of the law and resulting practical circumstances that such a philosophy imposes. They might deem this the most feasible way of securing their interests and fear that problems would arise from their dissent. Thus, they might subscribe to a philosophy without having performed the necessary considerations to understand it and adopt it as their own.
Some of that disability and misdirection may have its source in lacking capacity. But a large share also seems to be a matter of unwillingness and inability despite capacity. Individuals may not realize the importance of their involvement in philosophy and its practical applications. They may not believe that they can undertake the necessary considerations and management. They may prefer to focus on other subjects. They may therefore trust others to look out for them in the creation of appropriate philosophies and laws. Even if individuals become involved in either subject, they may largely rely on philosophies and laws presented to them and only argue about minor implements.
The threat that the philosophies of those left in in charge are incompatible with the interests of the governed makes the creation of law by less than all subjects a dangerous undertaking. A lack of participation incentivizes those who would benefit from a setting that is not or not fully in the interest of others subjected to such a setting. They might try to influence the ostensible philosophies of subjects so these will seemingly act autonomously in conducive ways or will tolerate or even support unjust laws. Independent philosophical thought, even if it is unable to set forth a solution of its own is dangerous for those holding or intending to hold unfair advantages. They will try to produce environments where philosophical considerations are preempted or channeled to comply with the favorable mindset they seek. For further security, they will also seek to institute processes for the creation and administration of law that circumvent meaningful participation by disadvantaged subjects. To appease such subjects, they may offer certain levels of assistance and reliability. They might try to convince subjects that these are being served to the best extent possible by the system from which they unfairly profit. They might engage in manipulations to keep subjects from realizing that they do not share ruling philosophies and resulting laws or from acting upon that realization.
This manipulation may be vital to maximize the interests and secure the reign of abusers. If subjects realized that the governing order violates their interests and right to a setting that respects these and that they have the capacity for change, their abusers might have to apply coercion to hold them in servitude. Such measures may already be held in abeyance in form of legal and other contingencies designed to dissuade subjects from dissenting or to keep them from succeeding. They may force compliance by combining detriment from resistance with benefits from compliance. However, such a system is unstable. Although threats and their application can alter behavior, conformance is superficial and transitory because they openly point to their and their causes’ wrongfulness. This would antagonize subjects and might escalate coercion and responses. That is not in the interest of those seeking unfair advantage. Their relative lack of power and dependence on those they hold captive in their philosophy and legal order may leave them without much chance of prevailing once their subjects become aware. Because they might not be able to stop subjects from acting on independent philosophical insights, they are bound to focus on strategies to prevent subjects from considerations that might lead to such insights. This may have been the main reason for a sidelining of popular philosophy for most of human history in which societies have been governed by and slanted in favor of elites.
Arguably, incompatibility with human existence should emerge at some time and lead to a correction of philosophies and laws. The development of philosophy and law might therefore appear inevitable. Yet the path to such clarity is fraught with great dangers of aberration and pain. Humanity must strive to minimize these dangers not only for the survival and well-being of individuals engaged on that path. It must also prevent harm to itself that would preclude it from reaching clarity or inhibit future generations from enjoying such clarity.
If we want to break through internal and external deceptions or confirm their absence, if we wish to ascertain to what extent the system in which we live advances or hinders our requirements, if we desire to improve our circumstances, we must develop a value system of our own. We have to determine what we want and how we want to arrange objectives within ourselves and in relation with other humans. Individual philosophical consideration is the indispensable authority from which all principles created by humans, all considerations how to organize us and the world around alone and with others must flow. It is the basic condition for a well-organized and fulfilled life. Without solid philosophical foundations, we are aimless and easily misled by ourselves and by others. We are prone to live a life without correct or correctly aligned values. We are in danger of failing to act when we should, acting when it is not in our interest, of failing to select the best or even a valid course of action. To avoid such a fate, we cannot leave the institution of principles by which we live to insufficiently reflected ideas or to the influence of others. We must be autonomous and conscientious in our considerations and in our decisions to project them on the establishment and maintenance of our preferred way of life. Although we might profit in our considerations from deliberations of others, we have to be capable of determining independently whether we agree with their premises, mental processes, and resulting principles. Because our needs and wishes demand that rules according to which we live support our desires, we are predisposed to become engaged in this way. Notions that would dissuade us from that right and responsibility constitute artificial impositions that we must shed.
Professional philosophers can assist in the emancipation of individuals. They can devise and teach techniques and challenges that allow individual philosophies to develop. They can demonstrate substantive gains that philosophy has already secured. Their continued involvement in the development of philosophy may be indispensable due to the apparent difficulty of arriving at a comprehensively valid code of conduct for human existence. The fact that a comprehensive philosophy has not been derived as a matter of objective science must not discourage them or nonprofessional philosophers. Secured foundations may increasingly offer guidance to build ideas of an optimized human existence within parameters that limit error and assist recovery. Moreover, awareness of shortcomings in the assuredness of propounded objectives and manners of pursuit can do much good by instilling critical attitudes that reflect the incomplete search for answers and an appropriate cautionary attitude in the assertion of philosophies and creation of laws. Lawyers also carry a particular responsibility in assisting the emancipation of humanity because much depends on whether they serve to keep the populace at bay by creating and administering unjust laws or involve themselves in creating justice.
Like any other human being, lawyers may have limits regarding laws whose application they are willing to support through their activities. Only, because they are set to not let their personal values interfere with their work, and because the formulation of laws upon the charge of legislative authorities and the application of law according to the resulting legal mandate are their focus, they are particularly challenged in that respect. They may resolve not to allow their representation to be abused by lending an appearance of fair legal substance or process to laws they regard as unjust. Apart from practical difficulties in devising effective reactions in such situations, such a stance seems to be in direct contradiction to the obligations of a lawyer as an unopinionated instrument of a legal order. However, while these obligations must exist to enable a functioning legal system, they are not unconditional. A lawyer’s vow of neutrality toward the law is predicated on laws that contain justifiable parameters. Where that is not the case, lawyers who practice within such a system without fighting its injustice allow themselves to be turned into tools of injustice. Lawyers must individually determine their limits of instrumentalization. Government may seek to suppress the preparedness of lawyers to withdraw their support for laws or a process that generates such laws. Such measures may be strict and punitive because government realizes how dependent it is on the cooperation of lawyers in legitimizing and conducting the imposition and maintenance of its order. As a consequence, the formation and exercise of a critical philosophy about the practice of law, the contents and limits of just laws, and the means of effectively installing and defending just laws and fighting unjust laws and legal orders are frequently exempted from legal training. Future lawyers may not be any more aided in such considerations than military recruits in matters of insubordination or active resistance. Law schools generally assume that the order they teach is legitimate and will continue to be so. Their licensing, funding, or their success in placing graduates may depend on congeniality with government or the legal order it has instituted. They may even be establishments by government. Their teaching of substantive philosophy is therefore frequently limited to historical accounts that do not place discussed philosophies into the context of present or possible future philosophical developments. The historical review may further be limited to the development that resulted in the prevailing constitutional laws and their interpretation in conformance with the official creed. These foundations might not be critically examined but taught with apotheotic reverence as commandments that must not be questioned. Demanding that they justify themselves may be viewed as a subversive sacrilege that threatens the foundations of society. Moreover, students may be deemed too immature to fully understand the wisdom of the order they are taught. Only, by the time they have absorbed this order, pivotal opportunities for critical understanding may have passed. Even if law schools offer philosophical training that encourages independent consideration and prepare students for acting according to their convictions, the pressures of learning the law and preparing for its practice force them and their students to set such notions aside. This attitude accelerates in practice where pressures to produce additionally restrain independence. Philosophical considerations thus gain a justified reputation of getting in the way of a legal career, and most practitioners avoid and, if necessary, denounce them.
Such a pattern is desirable for interests that seek to create and uphold a legal order for their purposes without having the light of consideration shine on their activities and the legal order that enables them. Therein lies a great danger. Even if a legal order should approximate what is just at some point, there seems to be very little that would keep it from drifting into or even from being taken over by forces that seek to attain power over the law to direct it unfairly toward their purposes. Philosophy is indispensable for the creation and maintenance of law to the extent it draws its authority from more than coercive domination and manipulation by its creators and administrators and gullibility, lethargy, and fear by its subjects. Relegating philosophy to a procedural skill set and justification of prevailing legal doctrine deprives it of its principal purpose. It threatens to leave the direction of legal order to the most cunning and ruthless segments of a society. Even if such segments are not currently in charge or do not even exist yet, a society must guard against this existential risk.
To fully stem that risk and enable the creation of laws that are most conducive to human existence, philosophy and its crystallization in laws must enter and develop in all members of a society to a conversant level. But until that has been accomplished, philosophers and lawyers carry special responsibility in educating the populace and protecting it from overreaching. This may necessitate a reorientation of philosophical training and practice. But it is also indispensable that philosophy takes its rightful place in lawyers’ minds. The best way to ensure that is the teaching of philosophy to law students. With the exception of objectively established philosophical principles regarding human existence, they might not have to become consummate experts in philosophy. Much of the burden in developing best practices for a human existence may have to be left to professional philosophers and the philosophical developments of the populace. But lawyers will have to know enough to detect, question, and argue with speculative philosophical impositions on law to expose these so that subjects of such law are alerted and can make up their minds whether to agree. The objective of this involvement would be a legal practice that recognizes its circumscribed area of scientific assuredness, participates in extending this area through contributions of practical and possibly deductive aspects, and points out areas that are incompatible or require further exploration. Except with regard to laws that wield extreme injustice, these functions must and can coexist with the neutrality obligations of attorneys in drafting and applying the law. During the period of searching for scientific insights and until their institution into laws, less than perfect philosophies and laws will have to be applied, and some extent of error may be unavoidable due to the speculative nature of both. The value of upholding a legal order that falls short of perfection during that time may exceed the detriment these imperfections cause. But to maximize justice, the law must become and continue to develop as a reflection of advancing philosophical insight. To enable this, and to prevent that societal forces sweep away achievements in a consummate coup of breaking through governing resistance, lawyers cannot remain idle. They must find avenues to contribute in the effort of having the law keep pace with philosophical accomplishments.
Because of special skills in their fields and resulting intensified insight into the state and related tasks of philosophy and law, philosophers and lawyers have to be and cooperate on the forefront of enlightenment and its implementation. It may take substantial efforts to reorient both disciplines, overcome external obstacles, and win and coordinate public participation. The objective must be to enable humans to live their life under the best terms and to form a human and more extended environment that advances that objective on a basis of knowledge and related stability. Professionals in other disciplines will have to cooperate in this undertaking as well. But professional lawyers and philosophers must go further because they deal with questions of purpose to which all other disciplines are subsidiaries and because they must strive to empower the general population with detailed insights into and capabilities to practice within their disciplines. Philosophers and legal experts may remain necessary or helpful to assist the populace in evolving and administering philosophical and legal concerns even after emancipation and in preparing future generations of the population and assisting experts. But they must not replace or unscientifically influence popular decisions which objectives to follow or how to follow them. Because individuals benefit or suffer from these decisions, they have the right but also the responsibility to make up their own mind and to form their reality in accordance with it.
As central aspects in this venture, law and philosophy and their relationship must be the focus of human inquiry, aided by disciplines of natural laws. They seem to constitute a unique sphere of freedom within the otherwise strict parameters set by the principles of nature. Yet human laws appear to us different from natural laws only because they are the result of complex amalgamations of laws and their instances in us and our circumstances and because our consciousness of ourselves is mostly as an undifferentiated entirety that seems to be free. That philosophy and resulting human law are a function of natural laws imposes an uncomfortable pall of predetermination on us. As much as understanding natural laws and their interaction may be necessary to build a scientifically based philosophy and resulting principles of optimized human conduct, we are inclined to take a different viewpoint that has us consider our trajectory optional. However, we are bound to find that our freedom to ignore the principles applying to human benefit is as much at our risk as ignoring other laws of nature in our conduct. Once we achieve scientific insight, we might see that the best manner of human existence is preordained, as is the issue of our application of that insight. In that insight, human and natural law will become one and philosophy will find its resolution in the knowledge of these laws. By these prospective developments, philosophy reveals itself as a potentially temporary discipline, and it does not claim to be anything else. As its mission to find knowledge ends, we are left with knowledge of an assortment of nature’s laws, including those active in us that decide whether and how we apply other laws. Unless we can further dissect such laws, philosophy ends. Our insight how law develops in reflection of philosophy and that philosophical insight is destined to resolve into law shows how closely these matters are connected. Separating them causes unnatural delays and contortions that all involved with or affected by them must seek to avoid.
© 2013-2021 BY MARTIN JANELLO