What Legal Scholarship is About
Chapter 1: Legal order
In this and the next chapter I intend to investigate what we have to think as the necessary and general keystone of our concept of law, or in less solemn words: what law is about in the end. While the second chapter will engage in placing this keystone, the present one will mainly prepare the place by deploying some critical arguments. It will attack a pattern of thought that dominates a good deal of thinking about law. The latter will be our starting point, because it presents itself ever so often in legal literature when it comes to articulating the reasonableness of positive law tout court. This pattern I will call contractual naturalism, which admit- tedly is ‘rather a mouthful’.1 It founds the legal order on the authority of the state, the authority of the state on the allegedly universal consensus about security demands of life in society, and these demands of social life on the natural needs of human individuals. Thus, it starts out from some allegedly nature-given facts: individual strivings for satisfaction of certain needs. On that sole fact it erects the buildings of society, state and law via two transitional moves: from individuals to society and from society to authoritative government. These transitions are conceived of as con- tracts. I want to argue that this pattern cannot be regarded as a coherent line of thought to understand the concept of law. Firstly, I set out in greater detail where and how we meet this pattern in the literature.
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