Internal Foundations of Law

Abstract

In speaking about the external foundations of law, I was alluding mainly to thoughts and theories about law. Sometimes I inserted substantive considerations on the “real” development and functions of law (e.g., on law in Islamic countries; problems of transformation; law, morality, and the welfare state). A general and persistent problem of the various theories lies in their explanatory shortcomings. Some of the theoretical models seem to have lost explanatory power over the centuries. Thus, the historical foundations of foundational thinking themselves change: transcendent conceptions in which explanation and justification were not yet separated fell prey to secularisation; theories that gave great weight to natural conditions, as in Montesquieu, are undermined by tendencies towards growing control of our natural environment. Great theories that emphasize one set of factors, like economic or political ones, are insufficient in that they can explain only limited aspects of law. Mixed models, as in Weber, that apply multifarious factors leave open the question of how to determine their relative weight. Thus, it is not a surprise to find other theorists who point to legally internal variables in order to explain the development and functions of law. Law, then, would lead, to a certain degree, its own life. It would be nice and aesthetically satisfying if one could construct a sequence from external foundations that become more and more manmade to internal foundations. However, I am not going to tell a grand narrative about growing “internalization,” in the tradition of the philosophy of history.