Philosophy of law
From Wikipedia, the free encyclopedia.

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 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.

In the twentieth century, two great 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.

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, 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.


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 

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.