Philosophy of law

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Philosophy of law is a branch of philosophy and jurisprudence that seeks to answer basic questions about law and legal systems, such as "What is law?", "What are the criteria for legal validity?", "What is the relationship between law and morality?", and many other similar questions.

Analytic jurisprudence

"The principal objective of analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms."^[1] The question that has received the most attention from philosophers of law is What is law? Several schools of thought have provided rival answers to this question, the most influential of which are:

• Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim: an unjust law is not a true law, in which 'unjust' is defined as contrary to natural law.
• Legal positivism is the view that the law is defined by the social rules or practices that identify certain norms as laws. One of the early positivists was [, whose views influenced a major positivist thinker of the nineteenth century, John Austin. Both held that the law is the command of the sovereign backed by the threat of punishment. Contemporary legal positivism has long abandoned this view. In the twentieth century, two positivists had a profound influence on the philosophy of law. On the continent, [ was the most influential, where his notion of a or a "presupposed" ultimate and basic legal norm, still retains some influence. In the Anglophone world, the pivotal writer was H. L. A. Hart, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative social facts. According to Hart, law is essentially a system of primary social rules that guide the conduct of law's subjects, and secondary rules that regulate how the primary rules may be changed, how disputes about them are to be adjudicated and, especially, how the primary rules are to be identified. Hart argues that this last function is performed by a "rule of recognition", a customary practice of the officials (especially judges) that identifies certain acts and decisions as sources of law. Hart's theory, although widely admired, has also been criticized by a variety of late twentieth century philosophers of law, including [
• Legal realism was a view popular with some Scandinavian and American writers. Skeptical in tone, it held that the law should be understood as being determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law.
• Legal interpretivism is the view, espoused mainly by Ronald Dworkin in his text titled Law's Empire, that law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal. It follows on Dworkin's view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some moral truths about the justifications for the practices in that society. It is consistent with Dworkin's view—in contrast with the views of legal positivists or legal realists—that no one in a society may know what its laws are (because no one may know the best justification its practices.)

In recent years, debates about the nature of law have become increasingly fine-grained. One important debate is within legal positivism. One school is sometimes called "exclusive legal positivism", and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled "inclusive legal positivism", and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case. Some philosophers used to contend that positivism was the theory that there is "no necessary connection" between law and morality; but influential contemporary positivists, including Joseph Raz, John Gardner, and Leslie Green, reject that view. As Raz points out, it is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder). In fact, it is even unclear whether Hart himself held this view in its broad form, for he insisted both that to be a legal system rules must have a certain minimum content, which content overlaps with moral concerns, and that it must attain at least some degree of justice in the administration of laws.

A second important debate in recent years concerns interpretivism, a view that is associated mainly with Ronald Dworkin. An interpretivist theory of law holds that legal rights and duties are determined by the best interpretation of the political practices of a particular community. Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be. But many writers have doubted whether there is a single best justification for the complex practices of any given community, and others have doubted whether, even if there are, they should be counted as part of the law of that community.

Normative jurisprudence

In addition to analytic jurisprudence, legal philosophy is also concerned with normative theories of law. "Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law."^[2] For example, What is the goal or purpose of law? What moral or political theories provide a foundation for the law? Three approaches have been influential in contemporary moral and political philosophy, and these approaches are reflected in normative theories of law:

• Utilitarianism is the view that the laws should be crafted so as to produce the best consequences. Historically, utilitarian thinking about law is associated with the philosopher Jeremy Bentham. In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the law and economics tradition.
• Deontology is the view that the laws should protect individual autonomy, liberty, or rights. The philosopher Immanuel Kant formulated a deontological theory of law (but not the only possible). A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin.
• Aretaic moral theories such as contemporary virtue ethics emphasize the role of character in morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous characters by citizens. Historically, this approach is associated with Aristotle. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.

There are many other normative approaches to the philosophy of law, including critical legal studies and libertarian theories of law.

Philosophical approaches to legal problems

Philosophers of law are also concerned with a variety of philosophical problems that arise in particular legal subjects, such as constitutional law, contract law, criminal law, and torts. Thus, philosophy of law addresses such diverse topics as theories of contract law, theories of criminal punishment, theories of tort liability, and the question of whether judicial review is justified.

Notable philosophers of law

See also

• Legal maxim
• Critical legal studies
• Constitutional economics
• Judicial activism
• Jurisprudence
• Justice
• Law
• Law and economics
• Law and literature
• Legal formalism
• Legal positivism
• Legal realism
• Libertarian theories of law
• Natural law
• Rule of law
• Rule according to higher law
• Virtue jurisprudence

Further reading

• Thomas Aquinas, Summa Contra Gentiles (many editions).
• Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).
• Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1986).
• Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986).
• Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1997).
• Lon L. Fuller, The Morality of Law (New Haven, CT: Yale University Press, 1965).
• John Chipman Gray, The Nature and Sources of Law (Peter Smith, 1972, reprint).
• H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).
• H. L. A. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968).
• Sterling Harwood, Judicial Activism: A Restrained Defense (London: Austin & Winfield Publishers, 1996).
• Georg Wilhelm Friedrich Hegel, Philosophy of Right (Oxford University Press 1967)
• Ian Farrell & Morten Ebbe Juul Nielsen, Legal Philosophy: 5 Questions, New York: Automatic Press, April 2007
• Oliver Wendell Holmes, Jr., The Common Law (Dover, 1991, reprint).
• Immanuel Kant, Metaphysics of Morals (Doctrine of Right) (Cambridge University Press 2000, reprint).
• Hans Kelsen, Pure Theory of Law (Lawbook Exchange Ltd., 2005, reprint).
• Duncan Kennedy, A Critique of Adjudication (Cambridge, MA: Harvard University Press, 1998).
• David Lyons, Ethics & The Rule of Law (Cambridge: Cambridge University Press, 1984).
• David Lyons, Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1993).
• Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1979).
• Joseph Raz, The Authority of Law (Oxford: Oxford University Press, 1983, reprint).
• Robert S. Summers, Instrumentalism and American Legal Theory (Ithaca, NY: Cornell University Press, 1982).
• Robert S. Summers, Lon Fuller (Stanford, CA: Stanford University Press, 1984).
• Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986).
• Jeffrie G. Murphy and Jules L. Coleman, The Philosophy of Law: An Introduction to Jurisprudence (Boulder, CO: Westview Press, 1989).
• Reinhold Zippelius, Rechtsphilosophie, 6th ed. (Munich: C.H. Beck, 2011).

References

External links

• Internet Encyclopedia of Philosophy: Philosophy of Law