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Philosophy and theory of Law

Special topics of philosophy and theory of law

This topic covers the following:

  • Origin of Law
  • Sources of Law
  • Nature of Law
  • Limits of law
  • Rule of law
  • Legal reasoning
  • Justice and injustice
  • Equal protection of the law
  • Law and ethics
  • Law and society

The Legal History of Ancient Greek Philosophy and Law

This section provides an overview of Ancient Greek Philosophy and Law.

Philosophy and Law

Hart argues Austin overlooks the existence of secondary meta-rules that have as their subject matter the primary rules themselves and distinguish full-blown legal systems from primitive systems of law:

“[Secondary rules] may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined” (Hart 1994, p. 92). (…)

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 1982, p. 171). (…)

Dworkin distinguishes conversational interpretation from artistic/creative interpretation and argues that the task of interpreting a social practice is more like artistic interpretation:

“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 1986, p. 50).

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 1986, p. 52).

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:

“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 1986, p. 90). (…)

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 1977, 351-52).

Author: Kenneth Einar Himma

Related Fields

Related topics include:

Philosophy

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Ethics

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Philosophy

Related Work and Conclusions

Resources

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  • Philosophy
  • Ethics

Resources

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References (Papers)

  • The Teachings Of Pope Francis Symposium: Toward A Common Good For Our Common Home, Steven W. Bender, Oct 2017
  • A Critique Of Pope Francis’S Laudato Si’, Nicholas Capaldi, Oct 2017
  • Laudato Si’: Engaging Islamic Tradition And Implications For Legal Thought, Russell Powell, Oct 2017
  • Where Morality And The Law Coincide: How Legal Obligations Of Bystanders May Be Informed By The Social Teachings Of Pope Francis, Amelia J. Uelmen, Oct 2017
  • Mercy Versus Fear, Or Where The Law On Migration Stands, Gilbert Paul Carrasco, Iryna Zaverukha, Oct 2017
  • A Cosmopolitan Church Confronts Right-Wing Populism, Vincent Rougeau, Oct 2017
  • Social Justice And The American Law School Today: Since We Are Made For Love, Michael Kaufman, Oct 2017
  • Social Justice And Capitalism: An Assessment Of The Teachings Of Pope Francis From A Law And Macroeconomics Perspective, Steven A. Ramirez, Oct 2017
  • Law In Books And Law In Action: The Problem Of Legal Change, Jean-Louis Halperin, Oct 2017
  • Looking At Justice Through A Lens Of Healing And Reconnection, Annalise Buth, Lynn Cohn, Oct 2017
  • Panel Discussion: Expanding Our Conception Of Justice, Oct 2017
  • The Pedagogical Needs Of Children And Adults Living In The Calais Jungle Refugee Camp: Existential Issues And Perspectives Of Volunteer Teachers And Workers, Theresa C. Bodon, Nancy K. Votteler, Sep 2017
  • Of Law And Other Artificial Normative Systems, Mitchell N. Berman, Sep 2017
  • From Eternity To Here: In Search Of The Origins Of Secularism, Nomi Stolzenberg, Sep 2017
  • Kelsen’s Pure Theory Of Law, Henry Cohen, Sep 2017
  • Morris R. Cohen: A Philosopher’s Influence On The Law, Harry N. Rosenfield, Sep 2017
  • Manifesto Of Democratic Criminal Justice, Joshua Kleinfeld, Aug 2017
  • The Psychology Of Conflict: Mediating In A Diverse World, Samantha Skabelund, Aug 2017
  • Arguing With Friends, William Baude, Ryan D. Doerfler, Jul 2017
  • Today’s Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman, Jul 2017
  • It Can’t Wait: Exposing The Connections Between Forms Of Sexual Exploitation, Dawn Hawkins, Jul 2017
  • For Legal Principles, Mitchell N. Berman, Jun 2017
  • Do Muddy Waters Shift Burdens?, Carrie Sperling, Kimberly Holst, Jun 2017

Resources

See Also

  • Legal Biography
  • Legal Traditions
  • Historical Laws
  • History of Law

Further Reading

Andrew Altman (1986), “Legal Realism, Critical Legal Studies, and Dworkin,” Philosophy and Public Affairs, vol. 15, no. 2, pp. 205-236.
Thomas Aquinas (1988), On Law, Morality and Politics (Indianapolis: Hackett Publishing Co.).
John Austin (1977), Lectures on Jurisprudence and the Philosophy of Positive Law (St. Clair Shores, MI: Scholarly Press.
John Austin (1995), The Province of Jurisprudence Determined (Cambridge: Cambridge University Press).
Randy E. Barnett (1977), “Restitution: A New Paradigm of Criminal Justice,” Ethics, vol. 87, no. 4, pp. 279-301.
Jeremy Bentham (1988), A Fragment of Government (Cambridge: Cambridge University Press).
Jeremy Bentham (1970), Of Laws In General (London: Athlone Press).
Brian Bix (1995), “Conceptual Questions and Jurisprudence,” Legal Theory, vol. 1, no. 4 (December), pp. 465-479.
Brian Bix (1996a), Jurisprudence: Theory and Context (Boulder, CO: Westview Press).
Brian Bix (1996b), “Natural Law Theory,” in Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (Cambridge: Blackwell Publishing Co.).
William Blackstone (1979), Commentaries on the Law of England (Chicago: The University of Chicago Press).
Jules L. Coleman (1989), “On the Relationship Between Law and Morality,” Ratio Juris, vol. 2, no. 1, pp. 66-78.
Jules L. Coleman (1982), “Negative and Positive Positivism,” 11 Journal of Legal Studies vol. 139, no. 1, pp. 139-164.
Jules L. Coleman (1996), “Authority and Reason,” in Robert P. George, The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press), pp. 287-319.
Jules L. Coleman (1998), “Incorporationism, Conventionality and The Practical Difference Thesis,” Legal Theory, vol. 4, no. 4, pp. 381-426.
Jules L. Coleman and Jeffrie Murphy (1990), Philosophy of Law (Boulder, CO: Westview Press).
Kimberle Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, eds. (1995), Critical Race Theory: The Key Writings That Formed the Movement (New York: The New Press).
Patrick Devlin (1965), The Enforcement of Morals (Oxford: Oxford University Press).
Gerald Dworkin (1972), “Paternalism,” The Monist, vol. 56, pp. 64-84.
Ronald Dworkin (1978), Taking Rights Seriously (Cambridge: Harvard University Press).
Ronald Dworkin (1982), “‘Natural’ Law Revisited,” University of Florida Law Review vol. 34, no. 2, pp. 165-188.
Ronald Dworkin (1986), Law’s Empire (Cambridge: Harvard University Press).
Joel Feinberg (1985), Offense to Others (Oxford: Oxford University Press).
Joel Feinberg (1979), “Civil Disobedience in the Modern World,” Humanities in Review, vol. 2, pp. 37-60.
John Finnis (1980), Natural Law and Natural Rights (Oxford: Clarendon Press).
William Fisher, Morton Horovitz, and Thomas Reed, eds. (1993), American Legal Realism (New York: Oxford University Press).
Jerome Frank (1930), Law and the Modern Mind (New York: Brentano’s Publishing).
Lon L. Fuller (1964), The Morality of Law (New Haven, CT: Yale University Press).
Lon L. Fuller (1958), “Positivism and Fidelity to Law,” Harvard Law Review, vol. 71, no. 4, pp. 630-672 .
Klaus Füßer (1996), “Farewell to ‘Legal Positivism’: The Separation Thesis Unravelling,” in Robert P. George, The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press), pp. 119-162.
John Chipman Gray (1921), The Nature and Source of Law (New York: Macmillan).
Kent Greenawalt (1987), Conflicts of Law and Morality (Oxford: Clarendon Press).
H.L.A. Hart (1994), The Concept of Law, 2nd Edition (Oxford: Oxford University Press).
H.L.A. Hart (1983), Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press).
H.L.A. Hart (1963), Law, Liberty and Morality (Oxford: Oxford University Press).
Kenneth Einar Himma (1998), “Positivism, Naturalism, and the Obligation to Obey Law,” Southern Journal of Philosophy, vol. 36, no. 2, pp. 145-161.
Oliver Wendall Holmes (1898), “The Path of the Law,” Harvard Law Review, vol. 110, no. 5, pp. 991-1009 .
Brian Leiter (1998), “Naturalism and Naturalized Jurisprudence,” in Brian Bix (ed.), Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press).
Brian Leiter, “Legal Realism,” in Dennis M. Patterson, ed. (1996), A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell Publishers).
John Stuart Mill (1906), On Liberty (New York: Alfred A. Knopf).
Michael Moore (1992), “Law as a Functional Kind,” in Robert P. George (ed.), Natural Law Theories: Contemporary Essays (Oxford: Clarendon Press).
Michael Moore, “The Moral Worth of Retribution,” in Ferdinand Schoeman, ed. (1987), Responsibility, Character, and the Emotions (Cambridge: Cambridge University Press).
Richard Posner (1992), Economic Analysis of Law, 4th Edition (Boston: Little, Brown, and Company).
John Rawls (1964), “Legal Obligation and the Duty of Fair Play,” in Sidney Hook (ed.), Law and Philosophy (New York: New York University Press), pp. 3-18.
Joseph Raz (1979), The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press).
Joseph Raz (1980), The Concept of a Legal System: An Introduction to the Theory of Legal Systems, Second Edition (Oxford: Clarendon Press).
Roger Shiner (1992), Norm and Nature (Oxford: Clarendon Press).
M.B.E. Smith (1973), “Do We have a Prima Facie Obligation to Obey the Law,” 82 Yale Law Journal 950-976.
Patricia Smith, ed. (1993), Feminist Jurisprudence (Oxford: Oxford University Press).
C.L. Ten (1987), Crime, Guilt, and Punishment (Oxford: Oxford University Press).
W.J. Waluchow (1994), Inclusive Legal Positivism (Oxford: Clarendon Press).

Hierarchical Display of Philosophy

European Union > European construction > EU relations > Social sciences
European Union > European construction > EU relations > Agreement (EU) > Association agreement (EU) > Political philosophy
European Union > European construction > EU relations > Agreement (EU) > Association agreement (EU) > Philosophy of law

Philosophy

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European Union > European construction > EU relations > Social sciences > Philosophy
European Union > European construction > EU relations > Agreement (EU) > Association agreement (EU) > Political philosophy > Philosophy
European Union > European construction > EU relations > Agreement (EU) > Association agreement (EU) > Philosophy of law > Philosophy

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