Philosophy of law
Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems, such as "what is law?", "what are the criteria for legal validity?", "what is the relationship between law and morality?", and many other similar questions. Legal philosophy as it is currently practiced by academics is primarily Western in its origins and perspective. The ideas of the Western legal tradition have become so pervasive throughout the world that it is tempting to see them as universal. The question that has received the most substantial attention from philosophers of law is What is law? Several schools of thought have provided rival answers to this question, the most influential of which are: Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim: an unjust law is not a true law, in which 'unjust' is defined as contrary to natural law. Legal positivism is the view that the law is defined by the social rules or practices that identify certain norms as laws. One of the early positivists was Jeremy Bentham, whose views were popularized by his student, John Austin. Both held that that law is the command of the sovereign backed by the threat of punishment. Contemporary legal positivism has long abandoned this view. In the twentieth century, two positivists had a profound influence on the philosophy of law. On the continent, Hans Kelsen was the most influential, where his notion of a Grundnorm or a "presupposed" ultimate and basic legal norm, still retains some influence. In the Anglophone world, the pivotal writer was H.L.A. Hart, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen's views that sanc ions were essential to law and that a normative social phenomenon, like law, can not be grounded in non-normative social facts. According to Hart, law is essentially a system of primary social rules that guide the conduct of law's subjects, and secondary rules that regulate how the primary rules may be changed, how disputes about them are to be adjudicated and, especially, how the primary rules are to be identified. Hart argues that this last function is performed by a "rule of recognition", a customary practice of the officials (especially judges) that identifies certain acts and decisions as sources of law. Hart's theory, although widely admired, has also been criticized by a variety of late twentieth century philosophers of law, including Ronald Dworkin, John Finnis, and Joseph Raz. Legal realism was a view popular with some Scandinavian and American writers. Sceptical in tone, it held that the law should be understood determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law. Legal interpretivism is the view, espoused mainly by Ronald Dworkin, that law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal. It follows on Dworkin's view that one cannot know whether a society has a legal system in force, or what any of its laws are, until one knows some moral truths about the justifications for the practices in that society. It is consistent with Dworkin's view--in contrast with the views of legal positivists or legal realists--that *no one* in a society may know what its laws are (because no one may know the best justification its practices.)