This paper examines three contemporary mainstream legal philosophers,
namely whether their analytical or constructive theories can meet the
demand of the changing society and be considered as sufficiently reflective
on the nature of law.
On the basis of a critical analysis of the main hypotheses underlying their
theories, this paper asks whether they restrict the legal thought to the
lawyer’s daily business by putting aside the problem of the justification of
the legal sanction. This paper argues that, if we want to take seriously the
relation of law and values, that means law as a moral idea, the
non-positivist legal thought presents significant advantages over rival
approaches. According to this non-positivist legal thought, the question of
‘the law as it is’ can not be separated from the question of ‘the law as it
ought to be’.
Law is a human institution as fact. But at the same time it is an ideal
standard against which our institutions are measured. In that sense this
paper tries to advance a normative argument for a pluralist legal theory
based on two central pillars: overcoming the descriptive/prescriptive
dualism, and the judiciary centered constructivism.