The Question of Normativity in Emil Lask’s Philosophy of Right
Abstract
Before Emil Lask wrote The Logic of Philosophy (1911) he outlined the main theses of his future philosophical project in The Philosophy of Right (1905): critique of the “two worlds theory”, the problem of pre-reflective cognition, the emphasis on the role of “pre-scientific” pre-theoretical reality. But how, according to Lask, does the transition from “pre-legal” to “legal” reality take place? The Philosophy of Right criticises the “two worlds theory”, interpreted in the spirit of Platonism, as a mixing of value and reality in the natural law and historism. Lask claims that such a shift can be avoided in the critical philosophy of law. Instead of choosing between absolutisation of extra-historical legal norm and absolutisation of historical factuality the critical philosophy of law works with the real world as a “semi-finished product” (Halbfabrikat) which corresponds to the meanings of culture. In the “semi-finished product” the realm of right is partly “scientific” and partly “pre-scientific”, which makes the question of transition from the “pre-legal” to “legal” reality particularly important. The transition is revealed through the creation of legal concepts, in which their pre-scientific formation (vorwissenschaftliche Begriffsbildungen) and the teleological principle, which is responsible for the selection of the pre-legal empirical substrate of right that can become legal, play a significant role. The Philosophy of Right and The Logic of Philosophy are seen as keys to understanding each other. Therefore the “two-storied building” metaphor used in The Logic of Philosophy to explain the two levels of cognition can be applied to the concept of right. I arrive at the conclusion that the philosophical-legal practice of norm formation, according to Lask, involves “two necessities”: the necessity of recognising the pre-scientific element in right and the necessity of converting it into a “scientific” one. Thus, normativity in the philosophy of right, according to Lask, is not introduced from “above-outside”, but is formed in a “semi-finished product” of the right itself.