Philosophy of law examines the structure and content of legal norms and rules, their connection to morality and political philosophy, as well as how they are interpreted. With over three centuries in existence, this subfield of philosophy has played an essential role in answering fundamental philosophical questions related to ethics, justice, and rights.
Philosophers of law often take a historical approach to their investigations, exploring how certain features and ideas about law have been integrated into various theories and texts throughout Western philosophy’s development. Some philosophers of law draw inspiration from Hegelianism, neo-Thomism, Marxism, and other continental traditions.
Philosophers of law have long sought to establish universal characteristics for the law and its social-political functions that can be identified through philosophical analysis. This approach has become known as “general jurisprudence”.
The Nature and Objectivity of Law
Law is a universal standard that ensures an orderly society (for example, a city or polis). Such societies are guided by comprehensive rules and institutions.
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The Nature of Law and How It is Deduced
Another view holds that law is derived from objective truths, such as fair play or implied consent, which guide decisions regarding what can and cannot be enforced under the law. This view aligns with Thomas Aquinas’ idea that all human-created regulations must adhere to ethical principles.
A Third Perspective on Law as a Structured Game
Some argue that law is simply an array of established norms which bind individuals together and provide social activity. These conventions aren’t created to solve some recurring coordination issue, but rather to capture important social values and practices which people value highly.
Social facts do not automatically dictate legal outcomes, but they can be interpreted and applied in various ways by judges and others involved in the law. This approach, popularly associated with Ronald Dworkin, is known as “interpretivism.”
According to this view, the legal validity of a rule depends on its logical coherence. If it violates some principle of fair play or implies consent, then it cannot be legally valid.
This theory stands in opposition to the “source thesis,” which states that law is derived from certain primary or fundamental rules. Hart and other positivists subscribe to this view, which implies all valid norms derive from certain fundamental sources.
The “social fact thesis” is an opposing viewpoint that holds that law’s legitimacy depends on certain social facts. These include having a sovereign who commands obedience in his area and an established system of justice with courts. On this view, a rule becomes law only if it has been given command by that sovereign and enforced through threat of punishment for noncompliance.