Philosophy of law





Philosophy of law is a branch of philosophy and jurisprudence which 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? Three schools of thought have provided
rivals answers to this question:

   * Natural law theory asserts that there is an essential connection
     between law and morality. This view is frequently summarized by the
     maxim: an unjust law is not a true law.
   * Legal positivism is 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 realism is the view that 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.

In the twentieth century, two great legal positivists had a profound
influence on the philsophy of law. On the continent, Hans Kelsen was the
most influential theory, and his notion of a grundnorm or 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 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, 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 thier 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:

   * 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. A contemporary deontological approach
     can be found in the work of the liberal 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 philosphy of law, including
critical legal studies and 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.