Tuesday February 21 , 2017

Philosophy of law

The philosophy of law is usually recognized as jurisprudence. Normative jurisprudence is fundamentally political philosophy, and asks, what should law be? while analytic jurisprudence asks "what is law?". John Austin's utilitarian reply was that law is "commands, backed by danger of sanctions, from a sovereign, to whom public have habits of obedience".

Natural lawyers on the new side, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and fixed laws of nature. The concept of "natural law" raised in ancient Greek philosophy alongside and in entanglement with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas and the commentaries of Islamic philosopher and jurist Averroes.

Hugo Grotius, the founder of a purely rationalistic arrangement of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason. Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism; that real law is completely divided from "morality". Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labelled as "moral" or "immoral".

In 1934, the Austrian philosopher Hans Kelsen continued the positivist custom in his book the Pure Theory of Law. Kelsen believed that although law is separate from morality, it is endowed with "normativity"; meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway is €500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a basic norm (Grundnorm) instructing us to obey. Kelsen's major opponent, Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not admit the primacy of abstract normative principles over actual political positions and decisions. Thus, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could include of all political experience.

Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fictions in The Concept of Law. Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be recognized as valid). Two of Hart's students continued the debate: In his book Law's Empire, Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept", that needs judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. Joseph Raz, on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law. Raz argues that law is authority, identifiable solely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to sociology, rather than jurisprudence.

Law-definition.net aims at rational reconstruction of law, i.e., 'positive' description of necessary and sufficient conditions for law as a phenomenon. It defines law as: a detailed statement/communiqué of prohibited, permitted, required or preferred act, carrying specific penalties or incentives; determined-in-advance and set by a communal entity with coercive or ostracizing capacity, or, among community members in a communal setting with that capacity; which displays relative superior legitimacy, in terms of fairness or efficiency, vis-à-vis the communal order it supersedes. It claims to demonstrate the relationship between law, morality and power that may resolve some of the definitional debates mentioned. By incorporating the notion of efficiency, the definition sheds light on the economic content of law

reference - wikipedia.org

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