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]

Philosophy Study of general and fundamental questions

Philosophy is the study of general and fundamental questions about existence, knowledge, values, reason, mind, and language. Such questions are often posed as problems to be studied or resolved. The term was probably coined by Pythagoras. Philosophical methods include questioning, critical discussion, rational argument, and systematic presentation. Classic philosophical questions include: Is it possible to know anything and to prove it? What is most real? Philosophers also pose more practical and concrete questions such as: Is there a best way to live? Is it better to be just or unjust? Do humans have free will?

Law System of rules and guidelines, generally backed by governmental authority

Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". Law is a system that regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including arbitration agreements that may elect to accept alternative arbitration to the normal court process. The formation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history and society in various ways and serves as a mediator of relations between people.

Ethics branch of philosophy that systematizes, defends, and recommends concepts of right and wrong conduct

Ethics or moral philosophy is a branch of philosophy that involves systematizing, defending, and recommending concepts of right and wrong conduct. The field of ethics, along with aesthetics, concerns matters of value, and thus comprises the branch of philosophy called axiology.

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.

Philosophical analysis is the techniques typically used by philosophers in the analytic tradition that involve "breaking down" philosophical issues. Arguably the most prominent of these techniques is the analysis of concepts.

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:

Natural law system of law that is purportedly determined by nature, and is thus universal; philosophy that certain rights are inherent by virtue of human nature endowed by "God" or another "Divine" source, and can be understood universally through human reason

Natural law is a philosophy asserting that certain rights are inherent by virtue of human nature, endowed by nature—traditionally by God or a transcendent source—and that these can be understood universally through human reason. As determined by nature, the law of nature is implied to be objective and universal; it exists independently of human understanding, and of the positive law of a given state, political order, legislature or society at large.

Thomas Aquinas Dominican scholastic philosopher of the Roman Catholic Church

Saint Thomas Aquinas was an Italian Dominican friar, Philosopher, Catholic priest, and Doctor of the Church. He is an immensely influential philosopher, theologian, and jurist in the tradition of scholasticism, within which he is also known as the Doctor Angelicus and the Doctor Communis. The name Aquinas identifies his ancestral origins in the county of Aquino in present-day Lazio, Italy.

John Finnis Australian legal scholar and philosopher

John Mitchell Finnis, is an Australian legal philosopher, jurist and scholar specializing in jurisprudence and the philosophy of law. He is currently the Biolchini Family Professor of Law at Notre Dame Law School and Permanent Senior Distinguished Research Fellow at the Notre Dame Center for Ethics and Culture. He was Professor of Law & Legal Philosophy at the University of Oxford from 1989 to 2010, where he is now professor emeritus. He acted as a constitutional adviser to successive Australian Commonwealth governments in constitutional matters and bilateral relations with the United Kingdom.

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.

Analytic philosophy style of philosophy

Analytic philosophy is a style of philosophy that became dominant in the Western world at the beginning of the 20th century. The term can refer to one of several things:

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:

The indeterminacy debate in legal theory can be summed up as follows: Can the law constrain the results reached by adjudicators in legal disputes? Some members of the critical legal studies movement — primarily legal academics in the United States — argued that the answer to this question is "no." Another way to state this position is to suggest that disputes cannot be resolved with clear answers and thus there is at least some amount of uncertainty in legal reasoning and its application to disputes. A given body of legal doctrine is said to be "indeterminate" by demonstrating that every legal rule in that body of legal doctrine is opposed by a counterrule that can be used in a process of legal reasoning.

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, FBA, 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

John Austin was a noted English legal theorist, who influenced British and American law with his analytical approach to jurisprudence and his theory of legal positivism. In opposing traditional approaches of "natural law", Austin argued against any necessary connections between law and morality. Human legal systems, he claimed, can and should be studied in an empirical, value-free way.

Robert Alexy German jurist

Robert Alexy is a jurist and a legal philosopher.

The Concept of Law book by H.L.A. Hart

The Concept of Law is a 1961 book by the legal philosopher HLA Hart and his most famous work.TheConcept of Law presents Hart's theory of legal positivism—the view that laws are rules made by humans and that there is no inherent or necessary connection between law and morality—within the framework of analytic philosophy. Hart sought to provide a theory of descriptive sociology and analytical jurisprudence. The book addresses a number of traditional jurisprudential topics such as the nature of law, whether laws are rules, and the relation between law and morality. Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers".

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

In social science, antipositivism is a theoretical stance that proposes that the social realm cannot be studied with the scientific method of investigation applied to Nature and that investigation of the social realm requires a different epistemology. Fundamental to that antipositivist epistemology is the belief that the concepts and language that researchers use in their researches shape their perceptions of the social world they are investigating, studying, and defining.

Joseph Raz Israeli philosopher

Joseph Raz is an Israeli legal, moral and political philosopher. He is one of the most prominent advocates of legal positivism and is well known for his conception of perfectionist liberalism. Raz spent most of his career as a professor of philosophy of law at the University of Oxford associated with Balliol College, and is now a part-time professor of law at Columbia University Law School and a part-time professor at King's College London. He received the prestigious Tang Prize for rule of law in 2018.

António Castanheira Neves is a Portuguese legal philosopher and a professor emeritus at the law faculty of the University of Coimbra.

This is an index of articles in jurisprudence.

Matthew Henry Kramer FBA is an American philosopher, currently Professor of Legal and Political Philosophy at the University of Cambridge and a Fellow of Churchill College, Cambridge. He writes mainly in the areas of metaethics, normative ethics, legal philosophy, and political philosophy. He is a leading proponent of legal positivism. He has been Director of the Cambridge Forum for Legal and Political Philosophy since 2000. He has been teaching at Cambridge University and at Churchill College since 1994.

<i>Laws Empire</i>

Law's Empire is a 1986 text in legal philosophy by Ronald Dworkin, in which the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20th century. The book notably introduces Dworkin's Judge Hercules as an idealized version of a jurist with extraordinary legal skills who is able to challenge various predominating schools of legal interpretation and legal hermeneutics prominent throughout the 20th century. Judge Hercules is eventually challenged by Judge Hermes, another idealized version of a jurist who is affected by an affinity to respecting historical legal meaning arguments which do not affect Judge Hercules in the same manner. Judge Hermes' theory of legal interpretation is found by Dworkin in the end to be inferior to the approach of Judge Hercules.

Alexander Somek Austrian legal scholar.

Alexander Somek is an Austrian legal scholar.

Legal norms are binding rules of conduct that organisations of sovereign power promulgate and enforce in order to regulate social relations. Legal norms determine the rights and duties of individuals who are the subjects of legal relations within the governing jurisdiction at a given point in time. Competent state authority issue and publish basic aspects of legal norms through a collection of laws that individuals under that government must abide to, which is further guaranteed by state coercion. There are two categories of legal norms: normativity, that regulates the conduct of people, and generality, which are binding for the indefinite number of people and cases. Diplomatic and legislative immunity refers to instances where legal norms are constructed to be targeted towards a minority and are specifically only binding for them, such as soldiers and public officials.

References

  1. 1 2 "Philosophy of law". Encyclopedia Britannica. Retrieved 2019-05-15.
  2. 1 2 3 Himma, Kenneth Einar (5/15/19). "Philosophy of Law". The Internet Encyclopedia of Philosophy.Check date values in: |date= (help)
  3. Postema, Gerald J. (2011), Postema, G.J. (ed.), "Economic Jurisprudence", A Treatise of Legal Philosophy and General Jurisprudence: Volume 11: Legal Philosophy in the Twentieth Century: The Common Law World, Springer Netherlands, pp. 181–211, doi:10.1007/978-90-481-8960-1_5, ISBN   9789048189601 , retrieved 2019-05-15
  4. Kornhauser, Lewis (2017), Zalta, Edward N. (ed.), "The Economic Analysis of Law", The Stanford Encyclopedia of Philosophy (Fall 2017 ed.), Metaphysics Research Lab, Stanford University, retrieved 2019-05-17
  5. 1 2 Marmor, Andrei; Sarch, Alexander (2015), Zalta, Edward N. (ed.), "The Nature of Law", 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), Zalta, Edward N. (ed.), "The Nature of Law", The Stanford Encyclopedia of Philosophy (Fall 2015 ed.), Metaphysics Research Lab, Stanford University, retrieved 2019-05-21
  7. Edwards, James (2018), Zalta, Edward N. (ed.), "Theories of Criminal Law", 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), Zalta, Edward N. (ed.), "Natural Law Theories", The Stanford Encyclopedia of Philosophy (Winter 2016 ed.), Metaphysics Research Lab, Stanford University, retrieved 2019-05-17
  10. Green, Leslie (2018), Zalta, Edward N. (ed.), "Legal Positivism", 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.
  14. "The Philosophy of Scandinavian Legal Realism". ResearchGate. Retrieved 2019-05-21.

Further reading