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Philosophy of law

(philosophylaw,philosophy law)

Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems , such as "what is the law?", "what are the criteria for legalvalidity?", "what is the relationship between law and morality?", and many other similar questions.


What is law?

The question that has received the most substantial attention from philosophers of law is What is law? Three schoolsof thought have provided rivals answers to this question:

  • Natural law theory asserts that there is an essential connection betweenlaw and morality. This view is frequently summarized by the maxim: an unjust law is not a true law.
  • Legal positivism is the view that the law is defined by thesocial rules or practices that identify certain norms as laws. Historically, the most important legal positivist theory wasdeveloped by Jeremy Bentham , whose views were popularized by hisstudent, John Austin. Austin's version of legal positivism was based on the notion that the law is the command of the sovereignbacked by the threat of punishment.
  • Legal realism is the view that that the law should be understood asit is practiced in the courts, law offices, and police stations, rather than as it is set forth in statutes or learnedtreatises.

In the twentieth century, two great legal positivists had a profound influence on the philosophy of law. On the continent, Hans Kelsen was the mostinfluential theorist, and his notion of a grundnorm or ultimate and basic legalnorm is still influential. In the Anglophone world, the most influential figure was H.L.A. Hart , who argued that the law should be understood as a system of social rules. Hart's theory, althoughwidely admired, was criticized by a variety of late twentieth century philosophers of law, including Ronald Dworkin , John Finnis, and Joseph Raz.

In recent years, debates over the nature of law have focused on two issues. The first of these is a debate within legalpositivism between two schools of thought. The first school is sometimes called exclusive legal positivism, and it isassociated with the view that the legal validity of a norm can never depend on its moral correctness. The second school islabeled inclusive legal positivism, and it is associated with the view that moral considerations may determine the legalvalidity of a norm, but that it not necessary that this is the case. Any theory that held that there was a necessary connectionbetween law and morality would not be a form of legal positivism.

The second important debate in recent years concerns interpretivism--a view that is strongly associated with RonaldDworkin. An interpretivist theory of law holds that legal rights and duties are determined by the best interpretation of thepolitical practices of a particular community. Interpretation, according to Dworkin, has two dimensions. To count as aninterpretation, the reading of a text must meet the criterion of fit. But of those interpretations that fit, Dworkinmaintains that the correct interpretation is the one that puts the political practices of the community in their best light, ormakes of them the best that they can be.

Normative Theories of Law

In addition to the question, "What is law?," legal philosophy is also concerned with normative theories of law. What is thegoal or purpose of law? What moral or political theories provide a foundation for the law? Three approaches have been influentialin 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 toproduce the best consequences. Historically, utilitarian thinking about law is associated with the great philosopher, JeremyBentham. 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 adeontological theory of law. A contemporary deontological approach can be found in the work of the liberal 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 thedevelopment of virtuous characters by citizens. Historically, this approach is associated with Aristotle. Contemporary virtuejurisprudence 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, suchas constitutonal 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 tortliability, and the question whether judicial review is justified.

Related topics


Philosophers of Law

See also

Importantpublications in philosophy of law

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