Overview - Philosophy of Law

Lecture 1 Introduction to the 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.

This course intends to introduce students certain basic issues in philosophy of law. It will be organized around the question: What should a legal system be? What are the fundamental features that are vital to a proper legal system, and what are some of the competing understandings of what these are?

Philosophy of law (or legal philosophy) is concerned with providing a general philosophical analysis of law and legal institutions. Issues in the field range from abstract conceptual questions about the nature of law and legal systems to normative questions about the relationship between law and morality and the justification for various legal institutions.

By reading both historical and contemporary authors, we will examine the theoretical bases of proper law as well as the appropriate practical implementation of key ideals in legal systems today. Correspondingly, along the way, we will consider the meaning of several concepts that are arguably crucial to a proper legal system, such as rights, freedom, representation, popular sovereignty, democracy, and republic.

Philosophers of law are also concerned with a variety of philosophical problems that arise in particular legal subjects, such as constitutional law, contract law, criminal law, and torts. Thus, philosophy of law addresses such diverse topics as theories of contract law, theories of criminal punishment, theories of tort liability, and the question whether judicial review is justified.

There are roughly three categories into which the topics of legal philosophy fall: analytic jurisprudence, normative jurisprudence, and critical theories of law.

Analytic jurisprudence involves providing an analysis of the essence of law. The principal objective of analytic jurisprudence has traditionally been to provide an account of what distinguishes law as a system of norms from other systems of norms, such as ethical norms. As John Austin describes the project, analytic jurisprudence seeks “the essence or nature which is common to all laws that are properly so called”. Accordingly, analytic jurisprudence is concerned with providing necessary and sufficient conditions for the existence of law that distinguish law from non-law.

Normative jurisprudence involves the examination of normative, evaluative, and otherwise prescriptive issues 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.

Finally, critical theories of law, such as legal realism, critical legal studies and feminist jurisprudence, challenge more traditional forms of legal philosophy.

Conceptual theories of law can be divided into two main headings: (a) those that affirm there is a conceptual relation between law and morality (natural law theories) and (b) those that deny that there is such a relation (legal positivism).