The Philosophy of Law

As a branch of jurisprudence and philosophy, philosophy of law aims to find the answer to basic questions about legal systems and law.

Analytic Jurisprudence

The primary objective of analytical jurisprudence is to distinguish law as a set of norms, like ethical norms.

  • The theory of natural law asserts the inherent nature of laws. Its essence can be summed up in the maxim: “a law is not true if it goes against natural law.”
  • Legal positivism defines law as a set of social practices or rules that specifies certain norms. John Austin, an early positivist in the 19th century, said that law is a sovereign command supported by the threat of punishment. On the other hand, contemporary legal positivism believes in a ground norm as the fundamental and ultimate legal norm. But, in the Anglophone world, law is a system of social norms that cannot be set in non-normative social facts.
  • Legal realism is a popular view among American and Scandinavian writers. It is a set of rules determined by actual practices of police stations, law offices, and legal courts.
  • Legal interpretivism believes that law includes the morally best justification for institutional practices and facts.

In previous years, legal positivism has been an important debate. The exclusive legal positivism school of thought holds that the validity of a norm does not rely on its moral correctness. On the other hand, inclusive legal positivism states the legal validity of a norm may depend on some moral considerations.

A few philosophers believed that positivism espoused that law and morality do not relate to each other. However, contemporary positivists reject this view. The legal system cannot have vices.

Interpretivism is also another hot debate in previous years. Legal duties and rights can be best interpreted by political practices in a society. According to Ronald Dworkin, interpretation must be fit the best practices of the community. But, writers doubted the existence of a single justification for complex community practices. Other writers doubted if such interpretation can be part of the law of the society.

Normative Jurisprudence

Aside from analytic jurisprudence, the philosophy of law also has normative theories. Normative jurisprudence includes evaluative, normative, and prescriptive questions about law. Three influential approaches reflect these normative theories.

  • Utilitarianism contends that laws result in the best consequences. This kind of thinking is attributed to Jeremy Bentham. Scholars who work in economics and law champion this utilitarianism approach.
  • Deontology protects individual rights, liberty, and autonomy. Immanuel Kant formulated this approach. Ronald Dworkin championed the contemporary deontological approach.
  • Aretaic moral theories emphasize the character’s role in morality. Virtue jurisprudence holds that laws promote the development of the citizen’s virtuous characters. Aristotle popularized this approach.

Philosophical Approaches to Solve Legal Problems

Law philosophers are anxious about the different philosophical problems in certain legal subjects like tort law, criminal law, and constitutional law. As such, the law philosophy addresses the diverse topics of theories of tort liability, theories of criminal punishment, and theories of contract law, as well as the justification of judicial review.

 

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