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 law can be sub-divided into analytical jurisprudence and normative jurisprudence. Analytical jurisprudence aims to define what law is and what it is not by identifying law's essential features. Normative jurisprudence investigates both the non-legal norms that shape law and the legal norms that are generated by law and guide human action.
Analytical jurisprudence seeks to provide a general account of the nature of law through the tools of conceptual analysis. The account is general in the sense of targeting universal features of law that hold at all times and places. Whereas lawyers are interested in what the law is on a specific issue in a specific jurisdiction, philosophers of law are interested in identifying the features of law shared across cultures, times, and places. Taken together, these foundational features of law offer the kind of universal definition philosophers are after. The general approach allows philosophers to ask foundational questions about, for example, what separates law from morality, politics, or practical reason. Often, scholars in the field presume that law has a unique set of features that separate it from other phenomena, though not all share the presumption.
While the field has traditionally focused on giving an account of law's nature, some scholars have begun to examine the nature of domains within law, e.g. tort law, contract law, or criminal law. These scholars focus on what makes a certain domain of law distinctive and how one domain differs from another. A particularly fecund area of research has been the distinction between tort law and criminal law, which more generally bears on the question of the difference between civil and criminal law.
Several schools of thought have developed around the nature of law, the most influential of which are:
In recent years, debates about the nature of law have become increasingly fine-grained. One important debate exists within legal positivism about the separability of law and morality. Exclusive legal positivists claim that the legal validity of a norm never depends on its moral correctness. Inclusive legal positivists claim that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case. Positivism began as an inclusivist theory; but influential exclusive legal positivists, including Joseph Raz, John Gardner, and Leslie Green, later rejected the idea.
A second important debate, often called the "Hart-Dworkin Debate," concerns the battle between the two most dominant schools in the late 20th and early 21st century, legal interpretivism and legal positivism.
In addition to analytic jurisprudence, legal philosophy is also concerned with normative theories of law. "Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law." For example, 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:
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 Tort law. Thus, philosophy of law addresses such diverse topics as theories of contract law, theories of criminal punishment, theories of tort liability, and the question of whether judicial review is justified.
Anarchist law is a hypothetical body of norms regarding behavior and decision-making that might be operative in an anarchist community. The term is used in a series of ongoing debates within the various branches of anarchist theory regarding if and how norms of individual and/or collective behavior, decision-making and actions should be created and enforced.Archon
Archon (Greek: ἄρχων, romanized: árchōn, plural: ἄρχοντες, árchontes) is a Greek word that means "ruler", frequently used as the title of a specific public office. It is the masculine present participle of the verb stem αρχ-, meaning "to be first, to rule". Derived from the same root are words such as monarch and hierarchy.Auctoritas
Auctoritas is a Latin word which is the origin of English "authority". While historically its use in English was restricted to discussions of the political history of Rome, the beginning of phenomenological philosophy in the 20th century expanded the use of the word.In ancient Rome, Auctoritas referred to the general level of prestige a person had in Roman society, and, as a consequence, his clout, influence, and ability to rally support around his will. Auctoritas was not merely political, however; it had a numinous content and symbolized the mysterious "power of command" of heroic Roman figures.
Noble women could also achieve a degree of Auctoritas. For example, the wives, sisters, and mothers of the Julio-Claudians had immense influence on society, the masses, and the political apparatus. Their Auctoritas was exercised less overtly than their male counterparts due to Roman societal norms, but they were powerful nonetheless.Authority
Authority is the right to exercise power, which can be formalized by a state and exercised by way of judges, appointed executives of government, or the ecclesiastical or priestly appointed representatives of a God or other deities.
A governing body may be labelled an authority e.g. the Puerto Rico Electric Power Authority or the Massachusetts Bay Transportation Authority. Authority can also mean the right to complete an action or execute an order.
In government, authority is often used interchangeably with power. However, their meanings differ: while power is the ability to order or accomplish a goal or to influence others, authority refers to a claim of legitimacy, the justification and right to exercise that power. For example, while a mob may have the power to punish a criminal by beating or lynching, the rule of law indicates that only a court of law has the authority to determine and refer a criminal for punishment. In this sense, authority is a matter of not only the ability or power to make decisions, but the right to make these decisions and execute them with commensurate power. Appropriate authority is the basis of good government in the republican conception of government, which finds much of its theoretical origins in ancient Rome.Biblical law
Biblical law refers to the legal aspects of the Bible, the holy scriptures of Judaism and Christianity.Index of philosophy of law articles
This is an index of articles in jurisprudence.
A Failure of Capitalism
American Society for Political and Legal Philosophy
António Castanheira Neves
Arthur Linton Corbin
Bartolomé de las Casas
Biblical law in Christianity
Carl Joachim Friedrich
Charles de Secondat, baron de Montesquieu
Critical legal studies
Critical race theory
Daniel N. Robinson
Declaration of Delhi
Dignitas (Roman concept)
Divine command theory
Duncan Kennedy (legal philosopher)
Emerich de Vattel
Ernesto Garzón Valdés
Ethical arguments regarding torture
Expounding of the Law
Eye for an eye
Feminist legal theory
First possession theory of property
Freedom of contract
Friedrich von Hayek
Georg Wilhelm Friedrich Hegel
German Historical School
Giorgio Del Vecchio
Global Justice or Global Revenge?
H. L. A. Hart
Indeterminacy debate in legal theory
International Association for Philosophy of Law and Social Philosophy
International legal theory
John Austin (legal philosopher)
John Macdonell (jurist)
Joseph H. H. Weiler
Juan de Mariana
Labor theory of property
Law and economics
Law and Gospel
Law and literature
Law as integrity
Law in action
Law of Christ
Law, Legislation and Liberty
Legal Education and the Reproduction of Hierarchy
Legal origins theory
Legal process (jurisprudence)
Legalism (Chinese philosophy)
Legalism (Western philosophy)
Letter and spirit of the law
Libertarian theories of law
Lon L. Fuller
Manuel de Lardizábal y Uribe
Monism and dualism in international law
Monopoly on violence
Natural order (philosophy)
New legal realism
Oliver Wendell Holmes, Jr.
Paul Johann Anselm Ritter von Feuerbach
Philippe de Mornay
Philosophy of copyright
Prediction theory of law
Principles of Islamic jurisprudence
Public policy doctrine (conflict of laws)
R. Kent Greenawalt
Robert P. George
Roberto Mangabeira Unger
Rule by decree
Rule of Faith
Rule of law
Scepticism in law
State of emergency
State of exception
The Case of the Speluncean Explorers
The Concept of Law
The Golden Rule
Translating "law" to other European languages
Unitary executive theory
Wesley Alba Sturges
Wesley Newcomb Hohfeld
Jurisprudence or legal theory is the theoretical study of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.Modern jurisprudence began in the 18th century and was focused on the first principles of natural law, civil law, and the law of nations. General jurisprudence can be divided into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists.This article addresses three distinct branches of thought in general jurisprudence. Ancient natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through reason, and it is from these laws of nature that human laws gain whatever force they have. Analytic jurisprudence (Clarificatory jurisprudence) rejects natural law's fusing of what law is and what it ought to be. It espouses the use of a neutral point of view and descriptive language when referring to aspects of legal systems. It encompasses such theories of jurisprudence as "legal positivism", which holds that there is no necessary connection between law and morality and that the force of law comes from basic social facts; and "legal realism", which argues that the real-world practice of law determines what law is, the law having the force that it does because of what legislators, lawyers, and judges do with it. Normative jurisprudence is concerned with "evaluative" theories of law. It deals with what the goal or purpose of law is, or what moral or political theories provide a foundation for the law. It not only addresses the question "What is law?", but also tries to determine what the proper function of law should be, or what sorts of acts should be subject to legal sanctions, and what sorts of punishment should be permitted.Law in action
Law in action is a legal theory, associated with legal realism, that examines the role of law, not just as it exists in the statutes and cases, but as it is actually applied in society. Law in action scholars often start with observations about the behavior of institutions and work "backwards" toward the legal philosophies guiding courts and traditional jurisprudence. As Kenneth B. Davis, Jr., Dean of the University of Wisconsin Law School has stated, "'Law in Action' . . . means that in teaching and research, no matter how interesting we find a legal theory, we always need to ask, 'How does this affect people's lives in the real world?'"Legal positivism
Legal positivism is a school of thought of analytical jurisprudence largely developed by legal thinkers in the 18th and 19th centuries, such as Jeremy Bentham and John Austin. While Bentham and Austin developed legal positivist theory, empiricism set the theoretical foundations for such developments to occur. The most prominent legal positivist writer in English has been H. L. A. Hart, who, in 1958, found common usages of "positivism" as applied to law to include the contentions that:
laws are commands of human beings
there is no necessary connection between law and morality, that is, between law as it is and as it ought to be.
analysis (or study of the meaning) of legal concepts is worthwhile and is to be distinguished from history or sociology of law, as well as from criticism or appraisal of law, for example with regard to its moral value or to its social aims or functions
a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations
moral judgments, unlike statements of fact, cannot be established or defended by rational argument, evidence, or proof ("noncognitivism" in ethics)Historically, legal positivism sits in opposition to natural law's theories of jurisprudence, with particular disagreement surrounding the natural lawyer's claim that there is a necessary connection between law and morality.Leslie Green (philosopher)
Leslie John Green is a Scottish-Canadian scholar in the analytic philosophy of law, or jurisprudence as it is often called by academic lawyers. He is Professor of the Philosophy of Law and Fellow of Balliol College, Oxford University, and Professor of Law and Distinguished Faculty Fellow at Queen's University, Kingston.Natural-law argument
Natural-law argument for the existence of God was especially popular in the eighteenth century as a result of the influence of Sir Isaac Newton. As Bertrand Russell pointed out much later, many of the things we consider to be laws of nature, in fact, are human conventions. Indeed, Albert Einstein has shown that Newton's law of universal gravitation was such a convention, and though elegant and useful, one that did not describe the universe precisely. Most true laws are rather trivial, such as mathematical laws, laws of probability, and so forth, and much less impressive than those that were envisioned by Newton and his followers. Russell wrote:
"If you say, as more orthodox theologians do, that in all the laws which God issues he had a reason for giving those laws rather than others -- the reason, of course, being to create the best universe, although you would never think it to look at it -- if there was a reason for the laws which God gave, then God himself was subject to law, and therefore you do not get any advantage by introducing God as an intermediary. You really have a law outside and anterior to the divine edicts, and God does not serve your purpose, because he is not the ultimate law-giver. In short, this whole argument from natural law no longer has anything like the strength that it used to have."The argument of natural laws as a basis for God was changed by Christian figures such as Thomas Aquinas, in order to fit biblical scripture and establish a Judeo-Christian teleological law.Norm (philosophy)
Norms are concepts (sentences) of practical import, oriented to effecting an action, rather than conceptual abstractions that describe, explain, and express. Normative sentences imply "ought-to" types of statements and assertions, in distinction to sentences that provide "is" types of statements and assertions. Common normative sentences include commands, permissions, and prohibitions; common normative abstract concepts include sincerity, justification, and honesty. A popular account of norms describes them as reasons to take action, to believe, and to feel.Normative
Normative generally means relating to an evaluative standard. Normativity is the phenomenon in human societies of designating some actions or outcomes as good or desirable or permissible and others as bad or undesirable or impermissible. A norm in this normative sense means a standard for evaluating or making judgments about behavior or outcomes. Normative is sometimes also used, somewhat confusingly, to mean relating to a descriptive standard: doing what is normally done or what most others are expected to do in practice. In this sense a norm is not evaluative, a basis for judging behavior or outcomes; it is simply a fact or observation about behavior or outcomes, without judgment. Many researchers in this field try to restrict the use of the term normative to the evaluative sense and refer to the description of behavior and outcomes as positive, descriptive, predictive, or empirical.Normative has specialized meanings in different academic disciplines such as philosophy, social sciences, and law. In most contexts, normative means 'relating to an evaluation or value judgment.' Normative propositions tend to evaluate some object or some course of action. Normative content differs from descriptive content.One of the major developments in analytic philosophy has seen the reach of normativity spread to virtually all corners of the field, from ethics and the philosophy of action, to epistemology, metaphysics, and the philosophy of science. Saul Kripke famously showed that rules (including mathematical rules, such as the repetition of a decimal pattern) are normative in an important respect.Though philosophers disagree about how normativity should be understood, it has become increasingly common to understand normative claims as claims about reasons. As Derek Parfit explains:
We can have reasons to believe something, to do something, to have some desire or aim, and to have many other attitudes and emotions, such as fear, regret, and hope. Reasons are given by facts, such as the fact that someone's finger-prints are on some gun, or that calling an ambulance would save someone's life. It is hard to explain the concept of a reason, or what the phrase 'a reason' means. Facts give us reasons, we might say, when they count in favour of our having some attitude, or our acting in some way. But 'counts in favour of' means roughly 'gives a reason for'. The concept of a reason is best explained by example. One example is the thought that we always have a reason to want to avoid being in agony.Obligation
An obligation is a course of action that someone is required to take, whether legal or moral. There are also obligations in other normative contexts, such as obligations of etiquette, social obligations, religious and possibly in terms of politics, where obligations are requirements which must be fulfilled. These are generally legal obligations, which can incur a penalty for non-fulfilment, although certain people are obliged to carry out certain actions for other reasons as well, whether as a tradition or for social reasons.
Obligations vary from person to person: for example, a person holding a political office will generally have far more obligations than an average adult citizen, who themselves will have more obligations than a child. Obligations are generally granted in return for an increase in an individual's rights or power. For example, obligations for health and safety in a workplace from employer to employee maybe to ensure the fire exit is not blocked or ensure that the plugs are put in firmly.
The word "obligation" can also designate a written obligation, or such things as bank notes, coins, checks, bonds, stamps, or securities.Organic law
An organic law is a law, or system of laws, that form the foundation of a government, corporation or any other organization's body of rules. A constitution is a particular form of organic law for a sovereign state.Political sociology
Political sociology is concerned with the sociological analysis of political phenomena ranging from the State, to civil society, to the family, investigating topics such as citizenship, social movements, and the sources of social power. The lineage of this discipline is typically traced from such thinkers as Montesquieu, Smith and Ferguson through the "founding fathers" of sociology – Marx, Durkheim and Max Weber – to such contemporary theorists as Gellner, Giddens, Habermas and Mann.
Where a typical research question in political sociology might have been "Why do so few American or European citizens choose to vote?" or even "What difference does it make if women get elected?", political sociologists also now ask: "How is the body a site of power?", "How are emotions relevant to global poverty?", or "What difference does knowledge make to democracy?"Polycentric law
Polycentric law is a legal structure in which providers of legal systems compete or overlap in a given jurisdiction, as opposed to monopolistic statutory law according to which there is a sole provider of law for each jurisdiction. Devolution of this monopoly occurs by the principle of jurisprudence in which they rule according to higher law.Question of law
In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. Answers to questions of law are generally expressed in terms of broad legal principles and can be applied to many situations rather than be dependent on particular circumstances or factual situations. An answer to a question of law as applied to the particular facts of a case is often referred to as a "conclusion of law."
In several civil law jurisdictions, the highest courts consider questions of fact settled by the lower court and will only consider questions of law. They thus may refer a case back to a lower court to re-apply the law and answer any fact-based evaluations based on their answer on the application of the law. International courts such as the Benelux Court of Justice and the European Court of Justice will only answer questions of law, asked by judges of national courts if they are not certain about the interpretation of the law of multilateral organizations.
While questions of fact are resolved by a trier of fact, which in the common law system is often a jury, questions of law are always resolved by a judge or equivalent. Whereas findings of fact in a common law legal system are rarely overturned by an appellate court, conclusions of law are more readily reconsidered.Treatise on Law
Treatise on Law is St. Thomas Aquinas' major work of legal philosophy. It forms questions 90–108 of the Prima Secundæ ("First [Part] of the Second [Part]") of the Summa Theologiæ, Aquinas' masterwork of Scholastic philosophical theology. Along with Aristotelianism, it forms the basis for the legal theory of Catholic canon law.