Arguments for or against an (emerging) Eclectic Theory of Law

Eric Datu Agustin

Abstract


Law, as an interdisciplinary concept, has a multidimensional character. It does not simply consist of a set of rules of conduct inherent in human nature and binding upon human society. More than a litany of legal principles and related concepts (e.g., rights, justice, liberty, punishment), laws also consist of a combination of historical, critical, postmodern, socio-political, inter alia dimensions. As such, in various legal systems, they can do any or a few, but not limited to the following: confer powers, define relations, explain or clarify, determine sanctions, permit or forbid human activities, etc. In this paper, using an eclectic theoretical approach to jurisprudence,1 I argue that no legal theory is ever complete without an adequate consideration of the multifacetedness of human laws, specifically when it comes to legality and morality, which may or may not be influenced by each other, but also by individuals, society, and the world. For one, law and morality have similar root in philosophy. They share some similarities and differences as their detailed treatment of what is or ought to be legal and moral sometimes overlap or clashes. Nevertheless, in various philosophical contexts, everything is related to everything else. Morality and law may be systematically and conceptually related or not despite their similarities and distinctiveness. As such, my argumentative research, or more aptly stated, discussion paper starts with a detailed discussion of the various legal theories’ focal points until a comprehensive analysis, interpretation, application, and synthesis of what law is, should be and ought to be is reached. Hence, the delimitation of my article is around various major legal theories and how an evolving conception of law and morality, not to mention other legal aspects, is presented for an implicit understanding of the present world and imminent future.

Keywords


Legal philosophy; Eclectic theory of law; Legal eclecticism; Eclectic jurisprudence

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