Philosophy of law

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Philosophy of law is a branch of philosophy and jurisprudence that studies 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.

Contents [hide]
1 Analytic Jurisprudence
2 Normative Jurisprudence

3 Philosophical approaches to legal problems

4 Notable philosophers of law
5 See also
6 Important publications
7 References
8 External links
Analytic Jurisprudence[edit]
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 Jeremy Bentham, whose views influenced the major nonpositivist thinkers 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, Hans Kelsen was the most influential, where his notion of a Grundnorm 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, can not 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 Ronald Dworkin, John Finnis, and Joseph Raz.
Legal realism was a view popular with some Scandinavian and American writers. Sceptical 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, 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 viewin contrast with the
views of legal positivists or legal realiststhat 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[edit]
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 great 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[edit]

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.