Legalism, in the Western sense, is the ethical attitude that holds moral conduct as a matter of rule following. [1] It is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context. Legalism has occurred both in civil and common law traditions. It underlines both natural law and legal positivism. [2] In its narrower versions, legalism may endorse the notion that the preexisting body of authoritative legal materials already contains a uniquely predetermined right answer to any legal problem that may arise.
Legalism typically also claims that the task of the judge is to ascertain the answer to a legal question by an essentially mechanical process rather than some Schmittian modality of sovereignty.[ citation needed ]
Jurisprudence is the philosophy and theory of law. It is concerned primarily with both what law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.
Logical positivism, later called logical empiricism, and both of which together are also known as neopositivism, is a movement whose central thesis is the verification principle. This theory of knowledge asserts that only statements verifiable through direct observation or logical proof are meaningful in terms of conveying truth value, information or factual content. 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.
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. 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.
Philosophy of science is the branch of philosophy concerned with the foundations, methods, and implications of science. Amongst its central questions are the difference between science and non-science, the reliability of scientific theories, and the ultimate purpose and meaning of science as a human endeavour. Philosophy of science focuses on metaphysical, epistemic and semantic aspects of scientific practice, and overlaps with metaphysics, ontology, logic, and epistemology, for example, when it explores the relationship between science and the concept of truth. Philosophy of science is both a theoretical and empirical discipline, relying on philosophical theorising as well as meta-studies of scientific practice. Ethical issues such as bioethics and scientific misconduct are often considered ethics or science studies rather than the philosophy of science.
A law is a universal principle that describes the fundamental nature of something, the universal properties and the relationships between things, or a description that purports to explain these principles and relationships.
Legal positivism is a school of thought of philosophy of law and jurisprudence which holds that law is constructed from social facts, without regards to the merits of such law. It was developed largely by legal philosophers during the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism provided the theoretical basis for such developments to occur. Some of the most prominent legal positivist writers of the 20th century have been Hans Kelsen, H. L. A. Hart, and Joseph Raz.
Legal realism is a naturalistic approach to law; it is the view that jurisprudence should emulate the methods of natural science, that is, it should rely on empirical evidence. Hypotheses must be tested against observations of the world.
Ronald Myles Dworkin was an American legal 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 philosopher H. L. A. Hart.
Herbert Lionel Adolphus Hart was an English legal philosopher. He was the 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.
Social philosophy examines questions about the foundations of social institutions, behavior, power structures, and interpretations of society in terms of ethical values rather than empirical relations. Social philosophers emphasize understanding the social contexts for political, legal, moral and cultural questions, and the development of novel theoretical frameworks, from social ontology to care ethics to cosmopolitan theories of democracy, natural law, human rights, gender equity and global justice.
Hans Kelsen was an Austrian jurist, legal philosopher and political philosopher. He was the principal architect of the 1920 Austrian Constitution, which with amendments is still in operation. Due to the rise of totalitarianism in Austria, Kelsen left for Germany in 1930 but was forced out of his university post after the Nazi seizure of power in 1933 because of his Jewish ancestry. That year he left for Geneva and in 1940 he moved to the United States. 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 social psychology and sociology.
Pure Theory of Law is a book by jurist and legal theorist Hans Kelsen, first published in German in 1934 as Reine Rechtslehre, and in 1960 in a much revised and expanded edition. The latter was translated into English in 1967 as Pure Theory of Law. The title is the name of his general theory of law, Reine Rechtslehre.
Positive laws are human-made laws that oblige or specify an action. Positive law also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb to posit.
The deductive-nomological model of scientific explanation, also known as Hempel's model, the Hempel–Oppenheim model, the Popper–Hempel model, or the covering law model, is a formal view of scientifically answering questions asking, "Why...?". The DN model poses scientific explanation as a deductive structure, one where truth of its premises entails truth of its conclusion, hinged on accurate prediction or postdiction of the phenomenon to be explained.
John Mitchell Finnis is an Australian legal philosopher and jurist specializing in jurisprudence and the philosophy of law. He is an original interpreter of Aristotle and Aquinas, and counts Germain Grisez as a major influence and collaborator. He has made contributions to epistemology, metaphysics, and moral philosophy.
Positivism is a philosophical school that holds that all genuine knowledge is either true by definition or positive—meaning a posteriori facts derived by reason and logic from sensory experience. Other ways of knowing, such as intuition, introspection, or religious faith, are rejected or considered meaningless.
This glossary of philosophy is a list of definitions of terms and concepts relevant to philosophy and related disciplines, including logic, ethics, and theology.
The Hart–Fuller debate is an exchange between the American law professor Lon L. Fuller and his English counterpart H. L. A. Hart, published in the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Hart took the positivist view in arguing that morality and law were separate. Fuller's reply argued for morality as the source of law's binding power.
Matthew Henry Kramer is an American philosopher, and is currently a 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.
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