Problems in the Application of Political Philosophy to Law

There are at least four reasons why one might expect differences between the philosophies one would want to serve the pure normative philosophy function and the applied political philosophy function. The problems of rationalization and limited knowledge suggest that sincere commitment to and successful application of a philosophy cannot be equated; the problems of attraction of the insincere and the lack of institutional checks on the abuse of philosophical concepts suggest that even a sincere commitment may not remain stable.

The remainder of this article seeks to substantiate the thesis that modern political philosophies suffer from insufficient attention to the distinction between the two ideals of political philosophy as a discipline. Part II considers the philosophy of the Critical Legal Studies movement, with particular emphasis upon the writings of Duncan Kennedy. Part III considers act and rule utilitarianism. Part IV ex-amines the philosophy of John Rawls and others who have followed him. Part V treats the libertarian analysis of Robert Nozick. Part VI concludes that the difficulties these philosophies have encountered are indeed symptomatic of the broader problem of the two distinct functions that political philosophies have sought to perform.