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 law?", "what are the criteria for legal validity?", "what is the relationship between law and morality?", and many other similar questions.
Legal philosophy as it is currently practiced by academics 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 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:
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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.
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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.
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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.
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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 rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, can not be grounded in non-normative social facts. 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 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.
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:
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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.
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Deontology is the view that the laws should protect individual autonomy, liberty, or rights. The philosopher
Immanuel Kant formulated a deontological theory of law (but not the only possible). 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.
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 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.
General
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Critical legal studies*
Judicial activism*
Jurisprudence*
Law and economics*
Legal formalism*
Legal positivism*
Legal realism*
Legal reality: analytic approach*
Libertarian theories of law*
Natural law*
Virtue jurisprudencePhilosophers of law
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Thomas Aquinas*
John Austin (legal philosophy)*
Jeremy Bentham*
Emilio Betti*
António Castanheira Neves*
Jules Coleman*
Ronald Dworkin*
John Finnis*
Lon L. Fuller*
Leslie Green (philosopher)*
H.L.A. Hart*
Georg Wilhelm Friedrich Hegel*
Oliver Wendell Holmes, Jr.*
Rudolf Jhering*
Immanuel Kant*
Hans Kelsen*
Kenneth Kipnis*
Joel Feinberg*
David Lyons*
Neil MacCormick*
Karl Marx*
Adolf Merkl*
Jeffrie Murphy*
Gustav Radbruch*
Joseph Raz*
Jeremy Waldron*
von Savigny*
Robert Summers*
Roberto Unger*
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, A Matter of Principle (Cambridge, MA: Harvard University Press, 1986).
* Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986).
* Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1997).
* 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).
* Georg Wilhelm Friedrich Hegel, Philosophy of Right (Oxford University Press 1967)
* Ian Farrell & Morten Ebbe Juul Nielsen,
Legal Philosophy: 5 Questions, New York: Automatic Press / VIP, April 2007: [
1]
* 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).
* Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986).
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Evgeny Pashukanis - General Theory of Law and Marxism
