Philosophers of law are concerned with providing a general philosophical analysis of law and legal institutions. Issues in legal philosophy range from abstract conceptual questions about the nature of law and legal systems to normative questions about the relation between law and morality and the justification for various legal institutions. Topics in legal philosophy tend to be more abstract than related topics in political philosophy and applied ethics. For example, whereas the question of how properly to interpret the U.S. Constitution belongs to democratic theory and hence falls under the heading of political philosophy, the analysis of legal interpretation falls under the heading of legal philosophy. Likewise, whereas the question of whether capital punishment is morally permissible falls under the heading of applied ethics, the question of whether the institution of punishment can be justified falls under the heading of legal philosophy. Topics in legal philosophy fall roughly into three categories: analytic jurisprudence, normative jurisprudence, and critical theories of law... 1. Analytic Jurisprudence
The principal objective of analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, analytic jurisprudence seeks "the essence or nature which is common to all laws that are properly so called" (Austin 1995, p. 11). Accordingly, analytic jurisprudence is concerned with providing necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world.
While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some confusion as to both the value and character of conceptual analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that can be served by conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain what is important or essential about a class of objects; and (4) to establish an evaluative test for the concept-word. Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law can be divided into two main headings: those that affirm there is a conceptual relation between law and morality and those that deny that there is such a relation. Nevertheless, Ronald Dworkin's view is often characterized as a third theory partly because it is not clear where he stands on the question of whether there is a conceptual relation between law and morality... 2. Normative Jurisprudence
Back to Table of Contents a. Freedom and the Limits of Legitimate Law
Laws limit human autonomy by restricting freedom. Criminal laws, for example, remove certain behaviors from the range of behavioral options by penalizing them with imprisonment and, in some cases, death. Likewise, civil laws require people to take certain precautions not to injure others and to honor their contracts. Given that human autonomy deserves prima facie moral respect, the question arises as to what are the limits of the state's legitimate authority to restrict the freedom of its citizens.
John Stuart Mill provides the classic liberal answer in the form of the harm principle: "[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrantÖ. Over himself, over his own body and mind, the individual is sovereign" (Mill 1906, pp. 12-13). While Mill left the notion of harm underdeveloped, he is most frequently taken to mean only physical harms and more extreme forms of psychological harm.
Though Mill's view-or something like it-enjoys currency among the public, it has generated considerable controversy among philosophers of law and political philosophers. Many philosophers believe that Mill understates the limits of legitimate state authority over the individual, claiming that law may be used to enforce morality, to protect the individual from herself, and in some cases to protect individuals from offensive behavior... 3. Critical Theories of Law
Back to Table of Contents a. Legal Realism
The legal realist movement was inspired by John Chipman Gray and Oliver Wendall Holmes and reached its apex in the 1920s and 30s through the work of Karl Llewellyn, Jerome Frank, and Felix Cohen. The realists eschewed the conceptual approach of the positivists and naturalists in favor of an empirical analysis that sought to show how practicing judges really decide cases (see Leiter 1998). The realists were deeply skeptical of the ascendant notion that judicial legislation is a rarity. While not entirely rejecting the idea that judges can be constrained by rules, the realists maintained that judges create new law through the exercise of lawmaking discretion considerably more often than is commonly supposed. On their view, judicial decision is guided far more frequently by political and moral intuitions about the facts of the case (instead of by legal rules) than theories like positivism and naturalism acknowledge... www.iep.utm.edu/l/law-phil.htm
The principal objective of analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, analytic jurisprudence seeks "the essence or nature which is common to all laws that are properly so called" (Austin 1995, p. 11). Accordingly, analytic jurisprudence is concerned with providing necessary and sufficient conditions for the existence of law that distinguishes law from non-law in every possible world.
While this task is usually interpreted as an attempt to analyze the concepts of law and legal system, there is some confusion as to both the value and character of conceptual analysis in philosophy of law. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical disciplines that takes conceptual analysis as its principal concern; most other areas in philosophy have taken a naturalistic turn, incorporating the tools and methods of the sciences. To clarify the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that can be served by conceptual claims: (1) to track linguistic usage; (2) to stipulate meanings; (3) to explain what is important or essential about a class of objects; and (4) to establish an evaluative test for the concept-word. Bix takes conceptual analysis in law to be primarily concerned with (3) and (4).
In any event, conceptual analysis of law remains an important, if controversial, project in contemporary legal theory. Conceptual theories of law can be divided into two main headings: those that affirm there is a conceptual relation between law and morality and those that deny that there is such a relation. Nevertheless, Ronald Dworkin's view is often characterized as a third theory partly because it is not clear where he stands on the question of whether there is a conceptual relation between law and morality... 2. Normative Jurisprudence
Back to Table of Contents a. Freedom and the Limits of Legitimate Law
Laws limit human autonomy by restricting freedom. Criminal laws, for example, remove certain behaviors from the range of behavioral options by penalizing them with imprisonment and, in some cases, death. Likewise, civil laws require people to take certain precautions not to injure others and to honor their contracts. Given that human autonomy deserves prima facie moral respect, the question arises as to what are the limits of the state's legitimate authority to restrict the freedom of its citizens.
John Stuart Mill provides the classic liberal answer in the form of the harm principle: "[T]he sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrantÖ. Over himself, over his own body and mind, the individual is sovereign" (Mill 1906, pp. 12-13). While Mill left the notion of harm underdeveloped, he is most frequently taken to mean only physical harms and more extreme forms of psychological harm.
Though Mill's view-or something like it-enjoys currency among the public, it has generated considerable controversy among philosophers of law and political philosophers. Many philosophers believe that Mill understates the limits of legitimate state authority over the individual, claiming that law may be used to enforce morality, to protect the individual from herself, and in some cases to protect individuals from offensive behavior... 3. Critical Theories of Law
Back to Table of Contents a. Legal Realism
The legal realist movement was inspired by John Chipman Gray and Oliver Wendall Holmes and reached its apex in the 1920s and 30s through the work of Karl Llewellyn, Jerome Frank, and Felix Cohen. The realists eschewed the conceptual approach of the positivists and naturalists in favor of an empirical analysis that sought to show how practicing judges really decide cases (see Leiter 1998). The realists were deeply skeptical of the ascendant notion that judicial legislation is a rarity. While not entirely rejecting the idea that judges can be constrained by rules, the realists maintained that judges create new law through the exercise of lawmaking discretion considerably more often than is commonly supposed. On their view, judicial decision is guided far more frequently by political and moral intuitions about the facts of the case (instead of by legal rules) than theories like positivism and naturalism acknowledge... www.iep.utm.edu/l/law-phil.htm
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