Philosophical Issues in Contemporary Law

Abstract

PHILOSOPHY is the name for the basic methodological and theoretical assumptions of a subject. Since every science uses some method of investigation and any scientist who reports facts to his colleagues must express these facts in words and, hence, introduce concepts and theory, it follows that any science whatever is also a philosophy. When no facts arise, however, to bring the traditional theory or methods of a subject into question, its problems are not philosophical. Then to be a scientist one need not also be a philosopher. Mathematics and physics were in such a state during the two hundred years following the publication of Newton's Principia in 1686. American law thought it was in a similar condition when, following Langdell, it introduced the case method and identified its science with the empirical study of cases. But whenever facts arise in any subject which bring its traditional theory or methods into question, at that moment its problems become philosophical. Then to be an effective scientist one must also be a philosopher. Such has been the state of mathematics and physics since the end of the nineteenth century. Such, as this essay indicates, is the state of law at the present time.