James Blanton
Section 13
Philosophy of law final report
Philosophy of law is concerned with the relationship between laws, ethics and political philosophy. law has been an integral part of every flourishing developed nation. The effects of an ill-conceived law can be substantial and last through centuries. History has been altered simply by the introduction or removal of radical legislature. Given the nature of law and its far-reaching impact, it is important to understand its beginnings in philosophy.
Philosophy can ask questions like what law is, what constitutes legal validity, and a very important question , how law and morality are related. Philosophy of law is defined under the principles of normative and analytical jurisprudence.
Legal positivism: “legal positivism is the thesis that the existence and content of law depends on social facts and on its merits”
Legal realism:” legal realism may be viewed as an elaborate commentary on an attitude toward law symbolized by the figure of that master of epigram, justice holmes.”
Legal interpretivism:” interpretivism about the nature of law is the view that legal rights and duties are determined by the scheme of principle that provides the best justification of certain political practices of a community.”s
Analytical-views law and legal practice through conceptual analysis. This philosophy is more generally focused on the universal ideas of law that can always be applied; however it also includes lawyers and their propensity to highlight the more specific details in their cases. The philosopher in this case focuses on how law functions through different cultures, times, and places. The analytical view examines how law may be sperate from other parts of reason or morality. Legal positivism is concerned with the pedigree thesis, the seperability thesis, and the discretion thesis. The pedigree thesis focuses on defining law by the source of its beginning. Merit or practicality of a law doesn’t will that law to be valid, it takes a legitimate system with a proper figure of government for law to have validity. The separability thesis invokes the idea that law is conceptually different from morality. The law is not responsible for morality nor is it solely based in it. Although this is true they often interact. The discretion thesis challenges the idea of bending the rules, and states that when a new law is drafted it Is because it undermines the result that existing law would come too.
Normative- normative jurisprudence in concerned with the evaluative questions related to law. It seeks to define and better understand the foundation of law, and what practices in morality may have impacted our system of law. It is also concerned with imposition of certain regulations and the impact law has on autonomy and liberty. The philosopher Immanuel Kant introduced a deontological theory of law. Another approach to deontology is seen through the work of Ronald Dworkin. Utilitarianism is another idea situated under the normative identity. Utilitarianism argues laws should be enacted wherein the best consequences can be produced. Jermey Bentham is often brought up when the utilitarian legal system is discussed.
“Utilitarianism is the view that the laws should be crafted so as to produce the best consequences”
“Deontology is the view that laws should protect individual autonomy, liberty, or rights”
What do some philosophers think
Socrates-“the laws are always just, but a law can be unjustly used”
Plato- “held that it was a product of reason and he identified it with nature itself”
Aristotle-“would have thought it easy to pass on the idea that law had a moral purpose: it is to make men good and righteous, above all to serve the common interest”
Why does the philosophy of law really matter? Firstly it has helped to define our history, whether in a positive or negative way, immensely. Secondly its important to know where something came from, it also helps to better define our current legal system. Lastly you may want to share or personally hold different views and understanding those ideas in a legal context can be very important. This will also make you a more informed citizen.
Discussion questions- 1.should law be based solely on moral principle
2. do you disagree with any current laws and why?
3. could a society function without the rule of law
Quiz questions-
What is normative jurisprudence.
What is analytical jurisprudence.
What is legal realism
Sources-
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8654&context=penn_law_review
commented on-
https://cophilosophy.blogspot.com/2019/12/mindfulness.html?showComment=1575775930016#c2811107124495674508
Kant said he was awestruck by the stars above and "the moral law within"... but not everybody knows what he was talking about, hence the positive law tradition. But don't we want the law to reflect both our deep intuitions about right and wrong and "deontology," AND our fervent wish to maximize good consequences in the world through the deployment of our various institutions and practices? So it's not a either/or...
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