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What is the philosophy of law?

The philosophy of law, or legal philosophy, examines and analyses the law in general, as well as legal institutions, systems, and principles. In particular, it examines the law’s relationship with other systems and philosophical areas, such as politics and political philosophy, economics, and ethics.

Common topics debated by philosophers of law include:

  • What is law?
  • What are the philosophical challenges in areas such as constitutional law, contract law, criminal law, private law, tort law, and the common law within a given legal system?
  • What is the relationship between law and morality?

This meeting of law and philosophy is an important one for legal philosophers, as well as for those who work in legal practice, students in law school, and so on. This is because it helps all legal professionals and academics better understand the rule of law.

What are the two main philosophies of law?

Philosophy of law has two main branches: analytical jurisprudence and normative jurisprudence.

Analytical jurisprudence

Analytical jurisprudence works to identify the law’s essential and universal features in order to help define what the law is – and what it is not. Philosophers of law highlight the distinctions and differences between the various areas of law, and have developed several schools of thought and theories on the nature of law:

Natural law theory

Natural law theory is a school of thought that argues law and practical reason are inherent in human nature. Natural law theorists suggest that the most fundamental moral standards upheld by law (laws against murder, for example) are instrinsic to human beings’ natures. The theory dates back at least as far as Thomas Aquinas, the Italian philosopher who famously stated that an “unjust law is a human law that is not rooted in eternal law and natural law.”

Interest in natural moral law theory increased in the late 20th century when John Finnis, a modern natural law theorist, advanced the belief that law is moral by nature. 

Legal positivism

Legal positivism is a school of thought that argues the law is a social construct, developed and given legal authority by social facts, social practices, and other human constructs, such as governments. Crucially, legal positivism argues that the law is distinct and separate from morality.

Positive law theory has been championed in the past by jurists such as John Austin and Joseph Raz. Austin, for example, was influenced by philosopher and jurist Jeremy Bentham, and believed the law was upheld by a sovereign and backed by the threat of punishment. Raz, meanwhile, denied it was impossible to connect law and morality, and was at odds with his contemporaries such as Law’s Empire author Ronald Dworkin, who argued that the law and legal rules cannot be separated from morality.

More recently, positivists have been influenced by scholars such as H.L.A. Hart, who wrote The Concept of Law, and argued that law is a rule-based system that can adapt and change, rather than being tied to any kind of connection between law and inherent morality.

Legal realism

Legal realists argue that the law should be descriptive, with courts explaining their complete legal reasoning that leads to any legal ruling, adjudication, or decision. More recently, legal philosophers such as Brian Leiter have suggested that legal realism embodies a prescient philosophical naturalism.

Across the spectrum from legal realism is legal formalism, which posits a theory of how judges should decide cases, applying straightforward, underlying principles in a system that could potentially be applied mechanically.

Normative jurisprudence

Normative jurisprudence digs deep into understanding how the law is shaped, as well as how the law shapes human action. One of the social sciences, it explores the purpose of law and its value to society. Like analytical jurisprudence, it has generated a number of theories:

Utilitarianism

Utilitarianism is a philosophy that argues the law should be shaped to provide the best outcomes and offer the most socially useful purpose possible. Its advocates suggest that this purpose can be defined as increased happiness, wealth, or justice – or alternatively, decreased unhappiness, poverty, or injustice.

Critical legal studies

Critical legal studies is a growing area of exploration within contemporary legal theory. These studies argue that the law is often contradictory, and more an expression of a dominant social group’s policy goals. Critical theories of law typically challenge more traditional theories within legal philosophy, and often focus on human rights and groups that have been historically marginalised within legal institutions. For example, critical race theory and feminist legal theory are two growing areas of analysis.

What is the difference between the two main philosophies of law?

Analytical jurisprudence and normative jurisprudence are both philosophies of law with different focuses. The remit of analytical jurisprudence lies in philosophical analysis, seeking to better understand the essence of the law and its place among other human systems, such as ethics. Normative jurisprudence, meanwhile, is focused on the normative, evaluative, and prescriptive issues within the law, such as its impacts on personal freedoms.