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Philosophy of Law

Philosophy of law, also called jurisprudence, deals with basic questions and theories about legal systems and law itself. Philosophers of law try to gain a firmer understanding of the nature of law, legal systems, legal reasoning, and legal institutions. Generally, scholars have divided philosophy of law into 3 areas of study: natural law, analytic jurisprudence, and normative jurisprudence. We explore each of these 3 fields below:

Natural Law

In philosophy of law, the idea of natural law consists of the belief that unchangeable laws of nature govern humankind. Generally, the belief in a natural law includes the belief that manmade governments ought to correspond with the natural law as much as possible.

The idea of natural law leads to the principle that says that an unjust law is not a true law. In fact, the idea of an 'unjust law' in and of itself requires that some form of natural law (i.e. justice) exists independent to manmade legal codes. For that reason, most philosophies associate natural law with morality, and thus often with religion. Basically, natural law theory tries to ascertain a moral code to guide the state's lawmaking, based on notions of an objective morality.

Analytic Jurisprudence

Analytic jurisprudence uses a neutral approach to describe the various facets of legal system. Unlike natural law, analytic jurisprudence makes descriptive statements rather than prescriptive statements; it describes law rather than prescribing it. Famously, in A Treatise of Human Nature, David Hume contended that people perpetually slip from describing the world to saying we ought to take on a specific route. Analytic jurisprudence recognizes the difference between saying what is as opposed to saying what ought to be; Analytic jurisprudence focuses on the former.

Most importantly, analytic jurisprudence attempts to answer the following questions:

• What is law?
• What are laws?
• How does law relate to social power?
• How does law relate to morality?

Analytic jurisprudence also asks many sociological questions as they relate to law.

Although many people have their own philosophy of law, legal positivism currently dominates the field of analytic jurisprudence. Legal positivism asserts that the validity of a law depends on whether or not a recognized authority posited it in the proper manner, regardless of any moral implications.

Normative Jurisprudence

Normative jurisprudence attempts to make prescriptive statements about law. It deals with questions about what law ought to be like. As a result, normative jurisprudence coincides with political philosophy and moral philosophy. It contains questions about whether or not people should obey the law, questions on the proper uses and limits of regulation, and questions abour what reasons criminals can be rightfully punished.

Normative Jurisprudence attempts to answer the following questions:

• What is the proper function of law?
• What is the intention of law?
• What poltical and moral beliefs act as a basis for law?
• What types of actions ought to be subject to punishment?
• How should people be punished?
• What is just and unjust?
• What is the value of law?
• Do people have a responsibility to obey law?

Major theories of normative jurisprudence include Deontology, Utilitarianism, and Virtue Jurisprudence. Additionally, John Rawls has famously done much work in this field.

Philosophy of Law ~ The West vs. The Rest

Western academics primarily dominate modern philosophy of law. In fact, Western ideas and legal traditions have pervaded the world so much that some may incorrectly think of them as universal. Nonetheless, numerous philosophers from other backgrounds have worked on the same questions throughout history, namely including the ancient Greeks and Islamic scholars.

Philosophy of Law - Any Questions?

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