Bound by law? Current law as feasibility constraint and normative input in political philosophy

The normative recommendations reached in works of political philosophy would often require, if they were to be implemented in a given country, changes in that country’s legal framework, either through changes in existing laws or through the introduction of new laws. This is so whether the recommendations concern who should have voting rights, distributive justice, or many of the other claims often made in political philosophy. (And similarly, proposals concerning global justice or the ethics of war might require changes in international law in order to be implemented.) Yet, political philosophers rarely go into detail as to the legal changes made necessary by their recommendations, often contenting themselves, to use Steven Ratner’s term, to suppose that the law can simply serve as a “vessel” for implementing the recommendations of the political philosopher. (Cf. Ratner, S. (2019). International law and political philosophy: Uncovering new linkages. Philosophy Compass, 14(2).) While this is understandable, given the level of generalization at which much political philosophy is done, it means that an important source of input risks being overlooked by political philosophers. Taking its cue from Ratner, who argues specifically that political philosophers working on global ethics need to engage with international law, this paper explores the ways in which political philosophers need to take account of current law when giving normative recommendations. On the one hand, knowledge of the current law may provide information about the feasibility and cost of trying to implement a given recommendation. On the other hand, but more controversially, the law might be a source of normative input for the political philosopher, as Ratner argues. In particular, I will explore the possibility that what Jeremy Waldron (building on Ronald Dworkin) calls “the circumstances of integrity” is a source of constraints for political philosophy, in that the political philosophers may have to ensure that their recommendations can be legally implemented in a way which coheres with the pre-existing legal framework in which they are implemented. Before one has taken the challenges of legal implementation into account, the political philosopher has arguably not finished their job, as such legal implementation is not simply a technical issue, but may involve moral challenges. If this is conclusion is correct, it may have further implications for how political philosophers should work, in at least two ways. First, political philosophy often takes place at a level of generality where it is unspecified in which country and legal context the proposed recommendation is to be implemented; next, political philosophy often considers single issues, without asking how the implementation of their recommendation on this issue affects the legal framework governing other issues. Taking the law seriously as a source of both feasibility constraints and normative input might therefore involve requiring that political philosophers are both more specific when it comes to the site of implementation of their proposed recommendation and more general when it comes to the implications of this implementation for other issues.