Law School Companion

Philosophy of Law

Philosophy of Law is a branch of jurisprudence and philosophy, which studies basic questions about legal systems and law. It deals with fundamental issues such as the correlation of the law and morality, the definition of law and the requirements for legal legitimacy. Jurisprudence is both the complex of legal principles that can be desumed by the sentences and the branch of humanist sciences that studies the law.

It usually refers either of two things –

1. Common law or Case law – It is the law that is established through the decisions of the courts and other authorized officials.
2. Philosophy of law or Legal theory – It studies the law in general; those attributes that are common to all legal systems.

What is Law?

This is the question that has received the most considerable interest from philosophers of law. There are three answers for this question –

• Natural law – This theory states that there are laws that are indwelling in nature, to which endorsed laws should match as narrowly as possible. This view is often recapitulated by the maxim i.e. an unjust law is not a true law where unjust is defined as contrary to natural law.
• Legal positivism – It is the view that the law is defined by the practices or social rules, which recognize definite norms as laws.
• Legal realism – It is the view that the law should be understood as it is practiced in the police stations, law offices, and courts, rather than as it is proposed in learned treatises or statutes.

Theories of Law

Philosophers of law are also concerned with normative theories of law i.e. what political or moral theories provide a foundation for the law? What is the purpose or goal of law? There are three theories of law –

1. Aretaic moral theories – It emphasizes on the role of character in morality i.e. virtue jurisprudence. Virtue jurisprudence is the name given to theories of law related to virtue ethics, which focuses on the importance of virtue to questions about the judging, the content of the law, and the nature of law.
2. Deontology – It is the view that the laws should protect individual rights, liberty, or autonomy. It was formulated by the philosopher Immanuel Kant.
3. Utilitarianism – It states that the law should be crafted in order to produce the best consequences. Traditionally, utilitarian approach is associated with Jeremy Bentham, the great philosopher. In modern legal theory, the utilitarian thinking about law is frequently mastered by scholars who work in the economics and law tradition.

Philosophers of law are also worried with a diversity of philosophical problems that happen in particular legal subjects, such as torts, criminal law, contract law, and constitutional law. Therefore, philosophy of law addresses such assorted topics like theories of tort liability, theories of criminal punishment, and theories of contract law.