Straus FEllow

Academic Year 2012-2013

Adam BeckerPhilippe Raynaud

Philippe Raynaud has been a Professor of Political Science at the  University of Panthéon-Assas since 1997. He had previously been a Professor of Political Science at the University of Lille (1991-1997) and a research fellow in political science at the CNRS (Centre National de la Recherche Scientifique (1988-1991). In 2004, he was appointed to the Institut Universitaire de France. He is the honorary president of the French Society for legal and political philosophy (SFPJ) and vice-president of the Fondation des Treilles. His writings include notably Le juge et le philosophe (Paris, 2008) and Trois Révolutions de la liberté. Angleterre, Amérique, France (Paris, 2009). He is the co-editor with Stéphane Rials of the Dictionnaire de Philosophie politique (Paris,  3rd edition, 2003).

Research

Legal Positivism, Moral Scepticism and the Moral Visions of the Constitutional Courts

Generally, one tends to consider that, although all legal positivist thinkers are not necessarily active defenders of democracy, there is a strong connection between legal positivism and a specific interpretation of modern Democracy. This theory of democracy considers, along with Hans Kelsen, that while moral dogmatism always implies a degree of autocracy, scepticism about the ends and the forms of human action is the ultimate foundation of democracy. In Kelsen’s work, this idea of democracy is connected with the central thesis of the Pure Theory of Law, namely the idea of an identity between law and the State, which should in fact be viewed as a critique of the “German” theories of the State’s self-limitation, in which what may be called the “defetichisation” of the categories of public law is also a way to “deconstruct” the authoritarian legacy of the imperial regime. We can find something similar in Herbert Hart. Indeed Hart is well known for his controversy with Lord Devlin about the relation between law and morals. Furthermore his critique of Austin’s positivism (1790-1859) led to a dramatic reduction of the “authoritarian” dimension of classical positivism, through a distinction between “rules” and “commands.”

The purpose of my research is to write a long paper or a book about the constitutive elements of the history of the moral philosophy of legal positivism. First, I will try to explain how scepticism about the hierarchy between the ends of human action, which emerges in Hobbes as an argument for absolute sovereignty, became a central element of democracy, not only in legal theory or in political philosophy but also in contemporary common sense. In order to shape and mature that reflexion – which stands at the heart of my project – I will then discuss some political philosophers and/or legal theorists whose work can both put this view in perspective and also show its strength and its difficulties (Hume, Tocqueville, Kelsen, Hart). Then I shall try a study of the place of moral arguments in Constitutional Law, with a special focus on some leading figures of the history of the US Supreme Court (notably Holmes and Brandeis) and a comparative view of American, French and German traditions. Finally, I will try to define the place that could belong to constitutional justice in a possible system of jurisprudence, showing why, beyond but not against legal positivism, it could be interpreted on the basis of the more classical models of Aristotle and Kant.