Principles of Law (The Philosophy of Law)

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These include but are not limited to:. Please help us improve our site! No thank you. LII Wex Jurisprudence. Jurisprudence Primary tabs Overview The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge, or science of law. Legal philosophy has many aspects, but four of them are the most common: The first and the most prevalent form of jurisprudence seeks to analyze, explain, classify, and criticize entire bodies of law.

Philosophy of Law

Law school textbooks and legal encyclopedias represent this type of scholarship. The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences. The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept. The fourth body of jurisprudence focuses on finding the answer to such abstract questions as "What is law?

The Laws of Philosophy & Principles

Realism Apart from different types of jurisprudence, different schools of jurisprudence exist. Naturalists Apart from the realist-formalist dichotomy, there is the classic debate over the appropriate sources of law between positivist and natural law schools of thought. Inclusive legal positivism is a form of positivism because it holds that social facts are the ultimate determinants of the content of the law, and that the law might be determined by social facts alone.

But it allows that people might choose to have the content of their law depend on moral facts, as they seem to do, for example, when they prohibit punishment that is cruel, or confer rights to legal protections that are equal. Exclusive positivists like Raz subscribe to the Source Thesis, according to which the existence and content of law can always be determined by reference to its sources without recourse to moral argument.

On this view, the sources of law include both the circumstances of its promulgation and relevant interpretative materials, such as court cases involving its application. Ronald Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition Dworkin , p.

Nevertheless, since judges are bound to consider such principles when relevant, they must be characterized as law. Thus, Dworkin concludes, "if we treat principles as law we must reject the positivists' first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule" Dworkin , p. Dworkin believes adjudication is and should be interpretive: "judges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract" Dworkin , p.

There are, then, two elements of a successful interpretation. First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light.

Thus, Dworkin argues, a judge should strive to interpret a case in roughly the following way:. A thoughtful judge might establish for himself, for example, a rough "threshold" of fit which any interpretation of data must meet in order to be "acceptable" on the dimension of fit, and then suppose that if more than one interpretation of some part of the law meets this threshold, the choice among these should be made, not through further and more precise comparisons between the two along that dimension, but by choosing the interpretation which is "substantively" better, that is, which better promotes the political ideals he thinks correct Dworkin , p.

Accordingly, on Dworkin's view, the legal authority of a binding principle derives from the contribution it makes to the best moral justification for a society's legal practices considered as a whole. Thus, a legal principle maximally contributes to such a justification if and only if it satisfies two conditions:. In later writings, Dworkin expands the scope of his "constructivist" view beyond adjudication to encompass the realm of legal theory. The most familiar occasion of interpretation is conversation.

We interpret the sounds or marks another person makes in order to decide what he has said. Artistic interpretation is yet another: critics interpret poems and plays and paintings in order to defend some view of their meaning or theme or point. The form of interpretation we are studying-the interpretation of a social practice-is like artistic interpretation in this way: both aim to interpret something created by people as an entity distinct from them, rather than what people say, as in conversational interpretation" Dworkin , p.

Artistic interpretation, like judicial interpretation, is constrained by the dimensions of fit and justification: "constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong" Dworkin , p. On Dworkin's view, the point of any general theory of law is to interpret a very complex set of related social practices that are "created by people as an entity distinct from them"; for this reason, Dworkin believes the project of putting together a general theory of law is inherently constructivist:.

"All the concepts that fit."

General theories of law must be abstract because they aim to interpret the main point and structure of legal practice, not some particular part or department of it. But for all their abstraction, they are constructive interpretations: they try to show legal practice as a whole in its best light, to achieve equilibrium between legal practice as they find it and the best justification of that practice. So no firm line divides jurisprudence from adjudication or any other aspect of legal practice Dworkin , p.

Indeed, so tight is the relation between jurisprudence and adjudication, according to Dworkin, that jurisprudence is no more than the most general part of adjudication; thus, Dworkin concludes, "any judge's opinion is itself a piece of legal philosophy" Dworkin , p. Accordingly, Dworkin rejects not only positivism's Social Fact Thesis, but also what he takes to be its underlying presuppositions about legal theory.

Hart distinguishes two perspectives from which a set of legal practices can be understood.

A legal practice can be understood from the "internal" point of view of the person who accepts that practice as providing legitimate guides to conduct, as well as from the "external" point of view of the observer who wishes to understand the practice but does not accept it as being authoritative or legitimate. Hart understands his theory of law to be both descriptive and general in the sense that it provides an account of fundamental features common to all legal systems-which presupposes a point of view that is external to all legal systems.

For this reason, he regards his project as "a radically different enterprise from Dworkin's conception of legal theory or 'jurisprudence' as he often terms it as in part evaluative and justificatory and as 'addressed to a particular legal culture', which is usually the theorist's own and in Dworkin's case is that of Anglo-American law" Hart , p.

PHILOSOPHY OF LAW, HISTORY OF

These remarks show Hart believes Dworkin's theoretical objectives are fundamentally different from those of positivism, which, as a theory of analytic jurisprudence, is largely concerned with conceptual analysis. For his part, Dworkin conceives his work as conceptual but not in the same sense that Hart regards his work:.

We all-at least all lawyers-share a concept of law and of legal right, and we contest different conceptions of that concept. Positivism defends a particular conception, and I have tried to defend a competing conception. We disagree about what legal rights are in much the same way as we philosophers who argue about justice disagree about what justice is. I concentrate on the details of a particular legal system with which I am especially familiar, not simply to show that positivism provides a poor account of that system, but to show that positivism provides a poor conception of the concept of a legal right Dworkin , These differences between Hart and Dworkin have led many legal philosophers, most recently Bix , to suspect that they are not really taking inconsistent positions at all.

Accordingly, there remains an issue as to whether Dworkin's work should be construed as falling under the rubric of analytic jurisprudence. Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law. Here we will examine three key issues: a when and to what extent laws can restrict the freedom of citizens, b the nature of one's obligation to obey the law, and c the justification of punishment by 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.

Great Philosophers: Hypatia

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.


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John Stuart Mill provides the classic liberal answer in the form of the harm principle:. 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 warrant. Over himself, over his own body and mind, the individual is sovereign Mill , pp.

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.

Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society's collective moral judgments even when those behaviors do not result in physical or psychological harm to others. According to this view, a person's freedom can legitimately be restricted simply because it conflicts with society's collective morality; thus, legal moralism implies that it is permissible for the state to use its coercive power to enforce society's collective morality. The most famous legal moralist is Patrick Devlin, who argues that a shared morality is essential to the existence of a society:.

For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price.

Devlin , p. Insofar as human beings cannot lead a meaningful existence outside of society, it follows, on Devlin's view, that the law can be used to preserve the shared morality as a means of preserving society itself. Hart points out that Devlin overstates the extent to which preservation of a shared morality is necessary to the continuing existence of a society. Devlin attempts to conclude from the necessity of a shared social morality that it is permissible for the state to legislate sexual morality in particular, to legislate against same-sex sexual relations , but Hart argues it is implausible to think that "deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society" Hart , p.

While enforcement of certain social norms protecting life, safety, and property are likely essential to the existence of a society, a society can survive a diversity of behavior in many other areas of moral concern-as is evidenced by the controversies in the U. Legal paternalism is the view that it is permissible for the state to legislate against what Mill calls "self-regarding actions" when necessary to prevent individuals from inflicting physical or severe emotional harm on themselves.

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As Gerald Dworkin describes it, a paternalist interference is an "interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced" G. Dworkin , p. Thus, for example, a law requiring use of a helmet when riding a motorcycle is a paternalistic interference insofar as it is justified by concerns for the safety of the rider.

Dworkin argues that Mill's view that a person "cannot rightfully be compelled to do or forbear because it will be better for him" Mill , p. According to Dworkin, there are goods, such as health and education, that any rational person needs to pursue her own good-no matter how that good is conceived. Thus, Dworkin concludes, the attainment of these basic goods can legitimately be promoted in certain circumstances by using the state's coercive force.


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Dworkin offers a hypothetical consent justification for his limited legal paternalism. On his view, there are a number of different situations in which fully rational adults would consent to paternalistic restrictions on freedom. For example, Dworkin believes a fully rational adult would consent to paternalistic restrictions to protect her from making decisions that are "far-reaching, potentially dangerous and irreversible" G. Nevertheless, he argues that there are limits to legitimate paternalism: 1 the state must show that the behavior governed by the proposed restriction involves the sort of harm that a rational person would want to avoid; 2 on the calculations of a fully rational person, the potential harm outweighs the benefits of the relevant behavior; and 3 the proposed restriction is the least restrictive alternative for protecting against the harm.

Joel Feinberg believes the harm principle does not provide sufficient protection against the wrongful behaviors of others, as it is inconsistent with many criminal prohibitions we take for granted as being justified. If the only legitimate use of the state coercive force is to protect people from harm caused by others, then statutes prohibiting public sex are impermissible because public sex might be offensive but it does not cause harm in the Millian sense to others.

Accordingly, Feinberg argues the harm principle must be augmented by the offense principle , which he defines as follows: "It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense as opposed to injury or harm to persons other than the actor, and that it is probably a necessary means to that end" Feinberg By "offense," Feinberg intends a subjective and objective element: the subjective element consists in the experience of an unpleasant mental state for example, shame, disgust, anxiety, embarrassment ; the objective element consists in the existence of a wrongful cause of such a mental state.

Natural law critics of positivism for example, Fuller frequently complain that if positivism is correct, there cannot be a moral obligation to obey the law qua law that is, to obey the law as such, no matter what the laws are, simply because it is the law.

As Feinberg puts the point:. The positivist account of legal validity is hard to reconcile with the [claim] that valid law as such, no matter what its content, deserves our respect and general fidelity.