His core idea is that the very distinction between facts and values in the legal domain, between what the law is and what it ought to be, is much more blurred than legal positivism would have it: Determining what the law is in particular cases inevitably depends on moral-political considerations about what it ought to be. It deals with what the goal or purpose of law is, or what moral or political theories provide a foundation for the law. Each school looks at it from its own point of view and lays emphasis upon some sources of law and its enforcement. To see why, distinguish between a thick evaluative claims, which predicate some kind of moral goodness, or perhaps all-things-considered value, of an item and b thin evaluative claims, which do not. Allen is recognized for her scholarship about legal philosophy, women's rights, and race relations, with a focus on privacy law, the philosophy of privacy, bioethics, and contemporary values.
The law is not only a career that interests many philosophers and philosophy students, it is also a field for which philosophical training is generally excellent preparation. Maine differed from Savigny also in believing that custom might historically follow an act of judgment, so that the jurist could be seen to have had a creative role in making the law, even though he claimed only to have found it. The Province and Function of Law. Binding force is moral, ethical force, as a rule being a principle of right and justice. Of course, this does not necessarily require asserting that the law, on any particular construal, is good—full stop.
But, inclusive legal positivists maintain, legal validity is sometimes a matter of the moral content of the norms, depending on the particular conventions that happen to prevail in any given community. Contemporary philosophy of law, which deals with general jurisprudence, addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists. His critics ask, times out of number, how customs can be reconciled with the theory of command, and where we can a supreme law-giver in primitive society. More generally, the naturalist owes an account of what features of law are most in need of explication and why. Or we could look a little deeper and find out how the written law is usually applied. England In England Henry Maine 1822 —1888 was closely identified with the historical school, although there is no evidence that he was directly influenced by the German thinkers. Depending on their individual circumstances, some students may be able to save time on the coursework component of the program and thereby complete the joint degree program in less time than would be required to complete both degrees separately.
Consequently, many have been named after him. Accordingly, let us consider some prominent arguments for thinking that legal theory must be inherently evaluative in nature. The study of philosophy hones one's deductive and inductive skills. Many of his important papers on these topics are collected in Naturalizing Jurisprudence Oxford, 2007. Those interested in the legal issues arising from developments in medicine and technology may wish to study bioethics or the philosophy of science. The goal of a first-order theory, on this sort of view, is to offer a metaphysical reduction of law: that is, to show that the phenomenon of law is actually constituted by, and fully reducible to, some other more foundational type of phenomenon in the way that chemistry could in principle be reduced to particle physics. Second, a major in philosophy also allows students to examine many of the current moral, political, and legal issues that are of interest to lawyers, judges, and legal scholars, while understanding the philosophical background to these issues.
Deutsche Staats- und Rechtsgeschichte, 4 vols. However, even if there are such universal characteristics of law—which is controversial, as we will later discuss—the reasons for a philosophical interest in elucidating them remain to be explained. Jurisprudence has been influenced by two main ways of understanding the relevant intuitions or data that theories of law aim to systematize. The basic idea behind the richer view is to take it that concept possession, rather than merely being a matter of knowing when words apply, involves something meatier: namely, the possession of a wide range of substantive beliefs or intuitions about the concept, its essential features and its proper application. Contract law intersects with the ethics of promising, criminal law intersects with philosophical concerns about responsibility and punishment, tort and property law intersect with philosophical reflection upon distributive and corrective justice. Foundations of Jewish Ethics — Zasloff New Books on Constitutional Law and Legal Theory — Sager and Shiffrin Privacy and Power in the Digital Age — Eichensehr and Re Stranger to Ourselves — Greenberg Other courses and methods of fulfilling the specialization: Independent Studies: In addition to these pre-approved courses, students are encouraged to enroll in independent studies with faculty members to do research and writing on theoretical issues concerning the law.
Some legal philosophers claimed that conventional rules cannot, by themselves, give rise to obligations. Modern historical jurisprudence in England was born with the publication in London of Maine's Ancient Law in 1861, the year of Savigny's death. Moreover, even if the conception of law that this inquiry ends up supporting departs radically from our pre-theoretical understanding of law, then the resulting theory would recommend abandoning that prior understanding of law. Without obedience to these rules life would not be worth living. Thus, offering an interpretation of legal practice would require taking a stand on which of the available ways of construing that practice is morally better than the others. General jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to be universal. In the course of the last few centuries, two main rival philosophical traditions have emerged about the nature of legality.
The jurists of the Philosophical School have always considered law as an abstraction and based it upon abstract ethical principles of justice. This conception went through two main stages. Admissions Admission is extremely competitive, and very few students are admitted. In contemporary legal theory, the utilitarian approach is frequently championed by scholars who work in the tradition. In the second half of the twentieth century, sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical legal philosophy; but with increasing criticism of dominant orientations of legal philosophy in English-speaking countries in the present century, it has attracted renewed interest. Moreover, one cannot make such comparative judgments without having a view about what would make one construal of legal practice morally better than another.
On conceptual analysis views, theories of law aim to capture the concept of law and they succeed to the extent that they provide a coherent account of the relevant data about that concept and related concepts. Pre-law philosophy students may choose any of the three tracks offered to philosophy majors. Government only by consent of the governed is a natural outgrowth of this view. Likewise, one might endorse a reduction of legal facts to some more foundational set of facts e. Such constitutive conventions are not explicable as solutions to some pre-existing recurrent coordination problem. All of us are conscious of these rules of life which enable society to survive. The distinction between rules and principles is a logical one.
Indeed, Immanuel Kant reminded us, 'What is law? In order for a proponent of the argument from interpretation to assert this premise, some rationale would have to be given for it. We could examine existing Legislative directives, having the form of general rules that are to be followed in the nation-state or its subdivisions. In the more difficult cases which tend to be adjudicated in the appellate courts, legal rules, by themselves, are radically indeterminate as to the outcome of the cases. Likewise, it is the duty of every individual to observe all such rules as help to realize social solidarity and abstain from all such acts as are detrimental to its growth. Raz, Ethics In The Public Domain, Oxford: Clarendon Press, Chapter 9.
Therefore, actions that are considered to be morally wrong will be against the law. Therefore a norm is legally valid i. Hart, Punishment and Responsibility Oxford: Oxford University Press, 1968. Thus, philosophy of law addresses such diverse topics as , theories of criminal punishment, theories of tort liability, and the question of whether judicial review is justified. Now, it follows that for something to be able to claim legitimate authority, it must be of the kind of thing capable of claiming it, namely, capable of fulfilling such a mediating role. All other precepts of the natural law are based on this. Later legal positivists have modified this view, maintaining that social rules, and not the facts about sovereignty, constitute the grounds of law.