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Encyclopedia > 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. The Philosopher (detail), by Rembrandt Philosophy is a study that includes diverse subfields such as aesthetics, epistemology, ethics, logic, and metaphysics. ... Jurisprudence is essentially the theory and philosophy of law. ... Law (from the late Old English lagu of probable North Germanic origin) in politics and jurisprudence, is a set of rules or norms of conduct which mandate, proscribe or permit specified relationships among people and organizations, intended to provide methods for ensuring the impartial treatment of such people, and provide...


Legal philosophy is primarily Western in its origins and perspective. The ideas of the Western legal tradition have become so pervasive throughout the world that it is tempting to see them as universal. The term Western world or the West can have multiple meanings depending on its context. ...

Contents


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 influential of which are:

  • Natural law theory 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 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 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 interpretivism is 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 Kelsen was the most influential theorist, 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. It has been suggested that Anarchist law be merged into this article or section. ... Legal positivism is a school of thought in modern and contemporary jurisprudence and the philosophy of law. ... Jeremy Bentham (IPA: ) (February 15, 1748 – June 6, 1832) was an English gentleman, jurist, philosopher, and legal and social reformer. ... Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). ... Interpretivism is a school of thought in contemporary jurisprudence and the philosophy of law. ... Hans Kelsen Hans Kelsen (Prague, October 11, 1881 – April 19, 1973) was an Austrian -American jurist of Jewish descent. ... Grundnorm is a German word meaning fundamental norm. ... H. L. A. Hart (Herbert Lionel Adolphus Hart) (1907-1992) is considered one of the most important legal philosophers of the twentieth century. ... Ronald Dworkin (born 1931) is an American philosopher, especially noted for his contributions to jurisprudence including legal philosophy, political philosophy, and moral philosophy. ... John Finnis (born 1940), an Australian Professor of Law at University College, Oxford and the University of Notre Dame, is one of the most prominent living legal philosophers. ... Joseph Raz is a legal, moral and political philosopher. ...


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 integrity theory, 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. Interpretivism is a school of thought in contemporary jurisprudence and the philosophy of law. ... Ronald Dworkin (born 1931) is an American philosopher, especially noted for his contributions to jurisprudence including legal philosophy, political philosophy, and moral philosophy. ...


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 legal 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 philosophy of law, including critical legal studies and libertarian theories of law. This article or section does not cite its references or sources. ... Jeremy Bentham (IPA: ) (February 15, 1748 – June 6, 1832) was an English gentleman, jurist, philosopher, and legal and social reformer. ... Law and economics is the term usually applied to an approach to legal theory that incorporates methods and ideas borrowed from the discipline of economics. ... In moral philosophy, deontology is the view that morality either forbids or permits actions, which is done through moral norms. ... Immanuel Kant (22 April 1724 – 12 February 1804), was a German philosopher from Königsberg (now Kaliningrad) in East Prussia. ... Ronald Dworkin (born 1931) is an American philosopher, especially noted for his contributions to jurisprudence including legal philosophy, political philosophy, and moral philosophy. ... The aretaic turn is a movement in contemporary moral philosophy and ethics to emphasize character and human excellence or virtue, as opposed to moral rules or consequences. ... In philosophy, the phrase virtue ethics refers to ethical systems that focus primarily on what sort of person one should try to be. ... In the philosophy of law, virtue jurisprudence is the name given to theories of law related to virtue ethics. ... Critical legal studies refers to a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law. ... Libertarian theories of law build on libertarianism or classical liberalism. ...


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. Contract theory is the body of legal thought that investigates normative and conceptual problems in contract law. ...


See also

General

Jurisprudence is essentially the theory and philosophy of law. ... Legal positivism is a school of thought in modern and contemporary jurisprudence and the philosophy of law. ... It has been suggested that Anarchist law be merged into this article or section. ... Legal formalism is a Positivist view in jurisprudence and the philosophy of law. ... Legal realism is a family of theories about the nature of law developed in the first half of the 20th century in the United States (American Legal Realism) and Scandinavia (Scandinavian Legal Realism). ... Critical legal studies refers to a movement in legal thought that applied methods similar to those of critical theory (the Frankfurt School) to law. ... Libertarian theories of law build on libertarianism or classical liberalism. ... In the philosophy of law, virtue jurisprudence is the name given to theories of law related to virtue ethics. ... Law and economics is the term usually applied to an approach to legal theory that incorporates methods and ideas borrowed from the discipline of economics. ...

Philosophers of Law

Saint Thomas Aquinas [Thomas of Aquin, or Aquino] (c. ... John Austin (1790 - 1859) was a jurist, served in the army in Sicily and Malta, but, selling his commission, studied law, and was called to the Bar 1818. ... Jeremy Bentham (IPA: ) (February 15, 1748 – June 6, 1832) was an English gentleman, jurist, philosopher, and legal and social reformer. ... Emilio Betti (1890-1968) was an Italian theologian, philosopher and jurist. ... António Castanheira Neves (born November 8, 1929) is a Portuguese legal philosopher and a professor emeritus at the law faculty of the University of Coimbra. ... Ronald Dworkin (born 1931) is an American philosopher, especially noted for his contributions to jurisprudence including legal philosophy, political philosophy, and moral philosophy. ... John Finnis (born 1940), an Australian Professor of Law at University College, Oxford and the University of Notre Dame, is one of the most prominent living legal philosophers. ... Lon Louvois Fuller (1902-1978) is a noted legal douche-bag philosopher, who wrote The Morality of Law in 1964, discussing the connection between law and morality. ... H. L. A. Hart (Herbert Lionel Adolphus Hart) (1907-1992) is considered one of the most important legal philosophers of the twentieth century. ... Oliver Wendell Holmes Jr. ... Immanuel Kant (22 April 1724 – 12 February 1804), was a German philosopher from Königsberg (now Kaliningrad) in East Prussia. ... Hans Kelsen Hans Kelsen (Prague, October 11, 1881 – April 19, 1973) was an Austrian -American jurist of Jewish descent. ... Duncan Kennedy (*1942 in Washington, D.C.) is the Carter Professor of General Jurisprudence at Harvard Law School. ... Sir Neil MacCormick QC, FBA, FRSE, (born May 27, 1941) was a Scottish member of the European Parliament, for the Scottish National Party from 1999-2004. ... Gustav Radbruch, born November 21, 1878 in Lübeck; died November 23, 1949 in Heidelberg, was a German law professor, most famous for the Radbruchsche Formel (Radbruchs formula) which states that where statutory law is incompatible with the requirements of justice to an intolerable degree, or where statutory law... Joseph Raz is a legal, moral and political philosopher. ... Friedrich Karl von Savigny Friedrich Karl von Savigny (February 21, 1779 - 25 October 1861) was a German jurist. ... Mark Tushnet (b. ... Roberto Unger is a Brazilian contemporary social theorist and law professor at Harvard Law School. ...

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).

  Results from FactBites:
 
Jurisprudence - Wex (500 words)
The word jurisprudence derives from the Latin term juris prudentia, whichmeans "the study, knowledge, or science of law." In the United States jurisprudence commonly means the philosophy of law.
Positivists argue that there is no connection between law and morality and the the only sources of law are rules that have been expressly enacted by a governmental entity or court of law.
The legal philosophy of a particular legal scholar may consist of a combination of strains from many schools of legal thought.
Legal Positivism (Stanford Encyclopedia of Philosophy) (9472 words)
Law is a distinctive form of political order, not a moral achievement, and whether it is necessary or even useful depends entirely on its content and context.
A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.
To identify the law of a given society we must engage in moral and political argument, for the law is whatever requirements are consistent with an interpretation of its legal practices (subject to a threshold condition of fit) that shows them to be best justified in light of the animating ideal.
  More results at FactBites »

 
 

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