Philosophy of law

Philosophy of law is a branch of philosophyand jurisprudencewhich studies basic questions about law and legal systems, such as "what is the law?", "what are the criteria for legal validity?", "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? Several schools of thought have provided rival answers to this question, the most influent of which are:

• Natural lawtheory 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 positivismis the view that the law is defined by the social rules or practices that identify certain norms as laws. Historically, the most important legal positivist theory was developed by Jeremy Bentham, whose views were popularized by his student, John Austin. Austin's version of legal positivism was based on the notion that the law is the command of the sovereign backed by the threat of punishment.
• Legal realismis the view that the law should be understood as it is practiced in the courts, law offices, and police stations, rather than as it is set forth in statutes or learned treatises.
• Legal interpretivismis the view that law is not a set of data or of facts, but what lawyers aim to construct or obtain in their morality laden practice.

In the twentieth century, two legal positivists had a profound influence on the philosophy of law. On the continent, Hans Kelsenwas the most influential theorist, and his notion of a Grundnormor ultimate and basic legal norm 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, although widely 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 legal positivism between two schools of thought. The first 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. The 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. Any theory that held that there was a necessary connection between 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 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 integritytheory, 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.

Normative Theories of Law

In addition to the question, "What is law?," legal philosophy is also concerned with normative theories of law. 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:

• Utilitarianismis 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 economicstradition.
• Deontologyis the view that the laws should protect individual autonomy, liberty, or rights. The philosopher Immanuel Kantformulated a deontological theory of law. A contemporary deontological approach can be found in the work of the legal philosopher Ronald Dworkin.
• Aretaic moral theoriessuch as contemporary virtue ethicsemphasize the role of character in morality. Virtue jurisprudenceis 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 studiesand 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 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 tort liability, and the question whether judicial review is justified.

See also

General

• Jurisprudence
• Legal positivism
• Natural law
• Legal formalism
• Legal realism
• Critical legal studies
• Libertarian theories of law
• Virtue jurisprudence
• Law and economics
• Legal reality: analytic approach

Philosophers of Law

• Thomas Aquinas
• John Austin (legal philosophy)
• Jeremy Bentham
• Emilio Betti
• António Castanheira Neves
• Jules Coleman
• Ronald Dworkin
• John Finnis
• Lon L. Fuller
• H.L.A. Hart
• Oliver Wendell Holmes, Jr.
• Rudolf Jhering
• Immanuel Kant
• Hans Kelsen
• Duncan Kennedy
• Kenneth Kipnis
• David Lyons
• Neil MacCormick
• Adolf Merkl
• Jeffrie Murphy
• Gustav Radbruch
• Joseph Raz
• von Savigny
• Robert Summers
• Mark Tushnet
• Roberto Unger

See also

• Important publications in philosophy of law
• Thomas Aquinas, Summa Contra Gentiles (many editions).
• Bruce L. Benson: Where Does Law Come From?
• Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).
• Ronald Dworkin, Matters of Principle (Cambridge, MA: Harvard University Press, 1986).
• Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1988).
• Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1997).
• Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2002).
• 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).
• 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).
• Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge, MA: Harvard University Press, 1988).
• Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986).

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