Reflections on the Idea of Law

Abstract The idea of law is a focus imaginarius lying beyond the bounds of possible experience but nevertheless structuring that experience. The practices composing a legal order refer to the idea of law, and those references embody assumptions concerning law’s nature. Yet, when we try to combine these various assumptions into a coherent understanding of the idea of law, we find them to be problematic. The resulting puzzles give rise to a philosophical debate concerning law’s nature. The positions adopted within that debate tacitly inform and structure the scholarly analysis and judicial application of law, for positive enactments and decisions become law only in so far as they take their place within a system that embodies the idea of law. In this way, law proves to be a reflexive enterprise involving inquiry into its own nature. Denials of this reflexivity lead to serious distortions in our understanding of the framework of legal thought. When properly understood, the idea of law proves to be an immanent moral ideal, closely related to ideas of freedom, justice, and civility. Since, in the circumstances of the real world, the ideal is never fully attainable, law is always touched, to a greater or lesser extent, by the “pathos of incompleteness.”