A broad philosophical account of law and legal institutions is what philosophy of law, often known as legal philosophy, aims to provide. The issues in the discipline vary from normative concerns concerning the connection between law and morality and the rationale for diverse legal institutions to abstract conceptual problems regarding the nature of law and legal systems.
The subjects of legal philosophy can be loosely divided into three groups: analytical jurisprudence, normative jurisprudence, and critical conceptions of law. In analytical jurisprudence, the substance of law is analysed in order to ascertain how it differs from other normative systems, such as ethics. Examining normative, evaluative, and other prescriptive aspects of the law, such as freedom constraints, legal responsibilities, and justifications for punishment, is the focus of normative jurisprudence. Finally, more conventional approaches to legal philosophy are questioned by critical views of law like feminist jurisprudence and critical legal studies.
Analytical legal reasoning
Analytical jurisprudence tries to offer a general explanation of the essence of law via the use of conceptual analysis tools, in contrast to experimental jurisprudence, which analyses the substance of legal ideas using social scientific approaches. The explanation is broad in the sense that it focuses on universal legal principles that apply everywhere and at all times. Philosophers of law are interested in discovering the characteristics of law that are shared throughout cultures, periods, and places, as opposed to lawyers who are concerned in what the law is on a given topic in a certain jurisdiction.
These fundamental aspects of law provide the type of all-encompassing definition philosophers seek when they are considered collectively. Philosophers can ponder issues like what distinguishes law from morality, politics, or practical reason using the broad method. Though not all in the field hold this belief, many assume that law possesses a special set of characteristics that distinguish it apart from other occurrences.
While the study has historically concentrated on providing an explanation of the nature of law, some researchers have started to look at the nature of specific areas of law, such as tort law, contract law, or criminal law. These academics concentrate on what distinguishes various legal fields and how they differ from one another. The dichotomy between tort law and criminal law, which more broadly relates to the division between civil and criminal law, has been a particularly fertile topic of research.
Legal Positivism
The idea of legal positivism holds that social realities are what law is most heavily dependent on. The pedigree thesis, the separability thesis, and the discretion thesis are the three concepts that legal positivism has historically been linked to. According to the pedigree thesis, the best approach to tell if a command is legal is to consider its genesis.
The thesis contends that the legality of a directive, as opposed to its moral or practical virtues, is determined by the fact that it was given by the appropriate authority within a legitimate government, for instance. According to the separability thesis, morality and legality are conceptually separate. The separability thesis asserts that while laws may include morality, “it is in no sense a necessary reality that laws replicate or meet specific needs of morality.
Legal realism
Legal realism holds that choices made by courts, law enforcement, and attorneys—decisions that are sometimes made on conflicting or arbitrary grounds—create laws. Legal realism contends that the rule of law is not a logical set of guidelines and standards. The assumption that law has a nature that can be analysed in the abstract is contested by legal realism. Legal realists, on the other hand, support an empirical approach to jurisprudence that is grounded on social sciences and the actual application of law in society. For this reason, the sociology of law is frequently linked with legal realism.
Legal interpretivism
Legal interpretivism, which contends that law must depend on human interpretation informed by societal moral standards, rejects the idea that law is source-based. Legal interpretivism asserts that judges typically decide matters in a manner that best upholds the moral standards, institutional facts, and social customs of the cultures of which they are a part. Judges have the option to decide cases in a variety of ways. Legal interpretivism holds that prior to knowing some moral facts about the grounds for the practises in a society, one cannot determine if that society has a functioning legal system or what any of its laws are.
Jurisprudence on norms
Legal philosophy, in addition to analytic jurisprudence, is concerned with normative conceptions of law. “Normative jurisprudence deals with normative, evaluative, and otherwise prescriptive legal questions.” What is the aim or objective of the law? What moral or political conceptions underpin the rule of law? Three approaches to current moral and political philosophy have been important, and these approaches are mirrored in normative conceptions of law:
Utilitarianism
Utilitarianism is the belief that laws should be written in such a way that they achieve the optimal results. The utilitarian approach is frequently championed in contemporary legal theory by scholars working in the law and economics tradition.
Deontology
Deontology is the belief that laws should reflect our commitment to protect others’ autonomy and rights.
Contemporary virtue ethics, for example, emphasise the significance of character in morality.
Virtue jurisprudence
Virtue jurisprudence is the belief that laws should encourage individuals to develop good personalities. Philosophical study on virtue ethics has influenced contemporary virtue jurisprudence.
Conclusion
The study of law is a specific instance of the wider discipline known as jurisprudence. Legal philosophy is the branch of philosophy that aims to provide an overall description of the nature of law. Legal philosophy is a relatively young discipline, having first been developed in the mid-twentieth century. The scope and depth of legal philosophy vary from scholar to scholar; some focus more narrowly on a single issue or specific area of law, while others offer a broader account of the deep structure of the legal system or the rationale behind specific legal institutions.
Legal philosophy is often interdisciplinary, drawing inspiration from fields like sociology and anthropology as well as traditional philosophy and theory. However, the field is not without its critics. Some scholars have criticized the discipline for being too abstract, while others have questioned whether legal philosophers are offering any useful analysis at all. Others argue that, while the topic is important, legal philosophers should focus more specifically on specific areas of law. The search for a universally shared definition of law is a perennial challenge.
