Philosophy of law

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Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. [1] [2] It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology. [3] [4]

Contents

Philosophy of law can be sub-divided into analytical jurisprudence and normative jurisprudence. [5] Analytical jurisprudence aims to define what law is and what it is not by identifying law's essential features. Normative jurisprudence investigates both the non-legal norms that shape law and the legal norms that are generated by law and guide human action. [5]

Analytical jurisprudence

Analytical jurisprudence seeks to provide a general account of the nature of law through the tools of conceptual analysis. The account is general in the sense of targeting universal features of law that hold at all times and places. [6] Whereas lawyers are interested in what the law is on a specific issue in a specific jurisdiction, philosophers of law are interested in identifying the features of law shared across cultures, times, and places. Taken together, these foundational features of law offer the kind of universal definition philosophers are after. The general approach allows philosophers to ask questions about, for example, what separates law from morality, politics, or practical reason. [6] Often, scholars in the field presume that law has a unique set of features that separate it from other phenomena, though not all share the presumption.

While the field has traditionally focused on giving an account of law's nature, some scholars have begun to examine the nature of domains within law, e.g. tort law, contract law, or criminal law. These scholars focus on what makes certain domains of law distinctive and how one domain differs from another. A particularly fecund area of research has been the distinction between tort law and criminal law, which more generally bears on the difference between civil and criminal law. [7]

Several schools of thought have developed around the nature of law, the most influential of which are:

In recent years, debates about the nature of law have become increasingly fine-grained. One important debate exists within legal positivism about the separability of law and morality. Exclusive legal positivists claim that the legal validity of a norm never depends on its moral correctness. Inclusive legal positivists claim that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case. Positivism began as an inclusivist theory; but influential exclusive legal positivists, including Joseph Raz, John Gardner, and Leslie Green, later rejected the idea.

A second important debate, often called the "Hart-Dworkin Debate," [13] concerns the battle between the two most dominant schools in the late 20th and early 21st century, legal interpretivism and legal positivism.

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." [8] 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:

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

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 Tort law. 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

Related Research Articles

Jurisprudence theoretical study of law, by philosophers and social scientists

Jurisprudence or legal theory is the theoretical study of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.

Logical positivism, later called logical empiricism, and both of which together are also known as neopositivism, was a movement in Western philosophy whose central thesis was the verification principle. Also called verificationism, this would-be theory of knowledge asserted that only statements verifiable through direct observation or logical proof are meaningful. Starting in the late 1920s, groups of philosophers, scientists, and mathematicians formed the Berlin Circle and the Vienna Circle, which, in these two cities, would propound the ideas of logical positivism.

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In philosophy of science and in epistemology, instrumentalism is a methodological view that ideas are useful instruments, and that the worth of an idea is based on how effective it is in explaining and predicting phenomena. Instrumentalism is a pragmatic philosophy of John Dewey that thought is an instrument for solving practical problems, and that truth is not fixed but changes as problems change. Instrumentalism is the view that scientific theories are useful tools for predicting phenomena instead of true or approximately true descriptions.

Legal positivism is a school of thought of analytical jurisprudence largely developed by legal thinkers in the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism set the theoretical foundations for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:

Ronald Dworkin American legal philosopher

Ronald Myles Dworkin, FBA was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New York University and Professor of Jurisprudence at University College London. Dworkin had taught previously at Yale Law School and the University of Oxford, where he was the Professor of Jurisprudence, successor to renowned philosopher H. L. A. Hart. An influential contributor to both philosophy of law and political philosophy, Dworkin received the 2007 Holberg International Memorial Prize in the Humanities for "his pioneering scholarly work" of "worldwide impact." According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century. After his death, the Harvard legal scholar Cass Sunstein said Dworkin was "one of the most important legal philosophers of the last 100 years. He may well head the list."

H. L. A. Hart 1907–1992; British legal philosopher

Herbert Lionel Adolphus Hart, usually cited as H. L. A. Hart, was a British legal philosopher, and a major figure in political and legal philosophy. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. His most famous work is The Concept of Law, which has been hailed as "the most important work of legal philosophy written in the twentieth century". He is considered one of the world's foremost legal philosophers in the twentieth century, alongside Hans Kelsen.

John Austin (legal philosopher) legal philosopher

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Hans Kelsen was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise of totalitarianism in Austria, Kelsen left for Germany in 1930 but was forced to leave this university post after Hitler's seizure of power in 1933 because of his Jewish ancestry. That year he left for Geneva and later moved to the United States in 1940. In 1934, Roscoe Pound lauded Kelsen as "undoubtedly the leading jurist of the time." While in Vienna, Kelsen met Sigmund Freud and his circle, and wrote on the subject of social psychology and sociology.

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<i>The Concept of Law</i> book by H.L.A. Hart

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Interpretivism is a school of thought in contemporary jurisprudence and the philosophy of law.

Jeremy Waldron is a New Zealand professor of law and philosophy. He holds a University Professorship at the New York University School of Law and was formerly the Chichele Professor of Social and Political Theory at All Souls College, Oxford University. Waldron also holds an adjunct professorship at Victoria University of Wellington. Waldron is regarded as one of the world's leading legal and political philosophers.

Joseph Raz Israeli philosopher

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This is an index of articles in jurisprudence.

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<i>Laws Empire</i>

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Alexander Somek Austrian legal scholar.

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References

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  2. 1 2 3 Himma, Kenneth Einar (2019-05-15). "Philosophy of Law". The Internet Encyclopedia of Philosophy.
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  5. 1 2 Marmor, Andrei; Sarch, Alexander (2015), "The Nature of Law", in Zalta, Edward N. (ed.), The Stanford Encyclopedia of Philosophy (Fall 2015 ed.), Metaphysics Research Lab, Stanford University, retrieved 2019-05-15
  6. 1 2 Marmor, Andrei; Sarch, Alexander (2015), "The Nature of Law", in Zalta, Edward N. (ed.), The Stanford Encyclopedia of Philosophy (Fall 2015 ed.), Metaphysics Research Lab, Stanford University, retrieved 2019-05-21
  7. Edwards, James (2018), "Theories of Criminal Law", in Zalta, Edward N. (ed.), The Stanford Encyclopedia of Philosophy (Fall 2018 ed.), Metaphysics Research Lab, Stanford University, retrieved 2019-05-21
  8. 1 2 "Philosophy of Law". Internet Encyclopedia of Philosophy.
  9. Finnis, John (2016), "Natural Law Theories", in Zalta, Edward N. (ed.), The Stanford Encyclopedia of Philosophy (Winter 2016 ed.), Metaphysics Research Lab, Stanford University, retrieved 2019-05-17
  10. Green, Leslie (2018), "Legal Positivism", in Zalta, Edward N. (ed.), The Stanford Encyclopedia of Philosophy (Spring 2018 ed.), Metaphysics Research Lab, Stanford University, retrieved 2019-05-21
  11. Hart, H. L. A. (1994). The Concept of Law, Second Edition. Oxford University Press. pp. 181–182. ISBN   978-0199644704.
  12. Essays in honor of Hans Kelsen : Celebrating the 90th Anniversary of His Birth. Fred B Rothman & Co. 1971. ISBN   978-0837705286.
  13. 1 2 Shapiro, Scott J. (2007-03-05). "The Hart-Dworkin Debate: A Short Guide for the Perplexed". Rochester, NY. SSRN   968657 .Cite journal requires |journal= (help)
  14. "The Philosophy of Scandinavian Legal Realism". ResearchGate. Retrieved 2019-05-21.

Further reading