On The "Issues" Of〈History Of Legal Philosophy’s Problems〉

<History of Legal Philosophy’s Problems> is one of most influential books of Kaufmann.This book is included in <Contemporary Legal Philosophy and Legal Theory Introduction>which jointly edited by Kauffman and Winfried Haas Merle.<History of Legal Philosophy’sProblems>, from the title point of view, is to research and study the history of the formationand development of the “issues” of legal philosophy. Of course, every legal philosopher willhave “issues” of philosophy of law. Therefore, the premise of the research is Kauffman’s viewon what is the “issues” of legal philosophy. In the book, according to his own idea, Kauffmanput forward a view on the basic issues of legal philosophy, and then, on this basis, studied theevolution of these basic issues. In other words, Kauffman put forward and analyzed the basicissues of legal philosophy with the awareness of his own issues, so, to grasp his awareness ofthe issues is the key to understand about the history of the development of the basic issues oflegal philosophy. So, I would like to make a preliminary analysis of Kauffman’s view in thisbook with “issues” of <History of Legal Philosophy’s Problems> as the theme.Kauffman pointed out that the two basic issues of legal philosophy:1. What is the right law?2.How to understand and realize the right law? Obviously, the “issues” troubled him is that: inthe present context, what is the right law and how to get and to achieve the right law, alsomeans he needs to put forward a knowledge systems in the context of the traditionalknowledge of right law facing challenges, and the system is a one with the actual match onwhat is the right law and how to obtain the right law. Under the guidance of this view, hepionts out: Philosophy of law has been experiencing the transformation from ontology toepistemology, then to linguistic philosophy. This article describes the process of Kauffman’sexploration on the two basic issues, analyzes and discusses how Kauffman found the way torealize the right law, which is procedure justice theory to human-based.This article has five parts to discuss Kauffman’s “issues”: the first part, Kauffman’s“issues”. This part discusses the essence and the task of philosophy of law in Kaufman’sthoughts and focuses on the basic issues of philosophy of law proposed by Kaufman himself,which includes: What is the right law? How to realize the right law? As well as therelationship between Kauffman’s awareness of “issues’ and the basic issues.The second part analyzes the logical thinking of Kauffman’s “issues”. The third part tells the internal motivefor the formation of Kauffman’s “issues”, and mainly introduces the efforts of seeking thethird way to transcend natural law and positivism in contemporary legal philosophy. It isintroduced from these three aspects: a. Radbruch’s legal philosophy; b. brief introduction to"open system", including hermeneutics and argument theory; c. summary of the Dworkin’s"general principle of law" theory. The forth part analyzes the relationship of legal methodsand philosophy of law, and descrebes Kauffman’s concern of legal method. The fifth part isKaufman’s procedural justice theory. When working out the fundamental questions of legalphilosophy, Kaufman has found using hermeneutics is not enough, so he turned to proceduretheory. Kaufman studies the existing system based on the existing procedure theory, and putsforward his procedure justice theory to human-based.