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The expression “reality that ought to be” may well be a coinage of mine, but what it expresses—something like a pragmatic and vital nonsense (Malinowski, —Bronislaw Malinowski, 1884–1942)—is not. Nor was it invented by Hans Kelsen, even if he was its foremost 20th-century theoriser and built on a daring cathedral of crystal, sophisticated, glorious, and fragile. Finally, the idea of the reality that ought to be was not invented by the jurists, either, despite the fact that they have been handling it for centuries, not always consciously or with due care.

This chapter pays homage to Eric A. Havelock. I have not been fortunate enough to meet him in person or to correspond with him. But I have received from him three gifts I much appreciate.

Like the terms , and (as considered in Sections 1.2 and 1.3), the Latin term means both “what is right” and “law,” so even with regard to , when it comes to providing an English translation of it, we face an alternative between “what is right” and “law,” or an ambiguity when carries both of these meanings. The meaning of in the Latin excerpt considered in Sections 4.1 and 4.3.3 is “what is right”: We considered how Cicero, Spinoza, and others understand the matrix of normativeness (the matrix of the reality that ought to be), and hence the ultimate source of what is right by positive law.

Recall what was observed in Section 1.2: Translating to “law” and to “right” would prove misleading to common-law and civil-law jurisprudents and jurists: It would not help toward improving their reciprocal understanding of those issues that are peculiar to each other’s legal culture. The distinction between “what is objectively right” and “what is subjectively right” is not a distinction pertaining to the concept expressed by “law.” It rather pertains to the concept expressed by “what is right” or “the right.”

The anthropologists, philosophers, philologists, and jurisprudents called into play in the foregoing Chapters 11 through 14—Malinowski, Kierkegaard, and Heidegger, on the connection between the ideas of reality that ought to be and of fate (Chapter 11); Havelock, on in Homeric epic (Chapter 12); Aquinas, on and as what is right and respectively, and on as type (Chapter 13); and Kelsen, on and (Chapter 14)—have been making their way into this fourth, and final, part of the present volume as “confirming others”: They have been doing so in regard to my characterisation of normativeness, of the reality that ought to be, and of what is objectively and subjectively right, as well as in regard to other kindred notions presented in this volume (such as typeconstitutiveness and nomia; Sections 2.1 and 6.5).

Those who seek for the foundations of something might be searching for a fixed basis, perhaps for an ultimate explanation; for determining grounds or causes; he or she looks for an origin, a beginning, for deeper strata, maybe even for an entity, the essence under or behind the phenomena. This investigation can move within hierarchical models: One drills into the depths or one even finds the “basis” up above, the foundations of religious or governmental authority for instance in God and his grace. Foundations are sought and established, however, also in historical dimensions. Political domination is traced back to a first sovereign, maybe to a mythical king, or to an initial contract, the better to avoid investigating into its historical dating. The basis of existing property relationships is seen in a first acquisition, in a first taking possession of unclaimed property, in a first tillage, etc. In all these models justification and explanation form an indissoluble mixture.

Before we look for extra-legal foundations of law we have to clarify what we mean by law, be it a dependent or an independent variable. Can we find foundations of law “in general”? Or do we have to restrict the analysis to particular legal norms? Do we refer to formally valid law or rather to efficacious legal norms and their functions? Are there similar foundations of the “law in the books” as for the “law in action”? Can we focus on the content of legal norms and on their forms as well? These are well-established systematic distinctions in legal theory. In addition, one could ask from a developmental point of view for the phylogenetic or anthropological foundations, i.e., preconditions of the existence of law in human societies. Furthermore, how did the separation of law from other rules, especially religious or moral ones, take place. Are there fundamental regularities in the historical development of law? With regard to recent times: What are the preconditions of the rule of law and of democracy? What are the foundations of human rights?

While the distinction between an external and internal point of view of an (observing) actor and an (acting) observer was introduced on the level of intersubjectively related individuals, the following core part of this volume uses the distinction between external and internal with respect to the topic of the foundations of an entire legal system or legal order and its various dimensions. The analysis is conducted on a collective or holistic level. It combines a hermeneutic point of view, attempting to understand the authors to whom I refer, with statements of facts related to norms.

In speaking about the external foundations of law, I was alluding mainly to thoughts and theories law. Sometimes I inserted substantive considerations on the “real” development and functions of law (e.g., on law in Islamic countries; problems of transformation; law, morality, and the welfare state). A general and persistent problem of the various theories lies in their explanatory shortcomings. Some of the theoretical models seem to have lost explanatory power over the centuries. Thus, the historical foundations of foundational thinking themselves change: transcendent conceptions in which explanation and justification were not yet separated fell prey to secularisation; theories that gave great weight to natural conditions, as in Montesquieu, are undermined by tendencies towards growing control of our natural environment. Great theories that emphasize one set of factors, like economic or political ones, are insufficient in that they can explain only limited aspects of law. Mixed models, as in Weber, that apply multifarious factors leave open the question of how to determine their relative weight. Thus, it is not a surprise to find other theorists who point to legally internal variables in order to explain the development and functions of law. Law, then, would lead, to a certain degree, its own life. It would be nice and aesthetically satisfying if one could construct a sequence from external foundations that become more and more manmade to internal foundations. However, I am not going to tell a grand narrative about growing “internalization,” in the tradition of the philosophy of history.

Whoever is considering the foundations of law has to face the critique of foundationalism in its extreme form, namely: anti-foundationalism.