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What Is Law

The term law is often used to refer to universal principles that describe the fundamental nature of something, to universal properties and relationships between things, or to descriptions that purport to explain these principles and relationships. For example, "physical law"s, or "scientific laws" attempt to describe the fundamental nature of the universe itself. Laws of mathematics and logic describe the nature of rational thought and inference. ...

The question that has received the most substantial attention from philosophers of law is What is law? Several schools of thought have provided rival answers to this question, the most influential of which are:

• Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim: an unjust law is not a true law, in which 'unjust' is defined as contrary to natural law.

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• Legal positivism is the view that the law is defined by the social rules or practices that identify certain norms as laws. Historically, the most important legal positivist theory was developed by Jeremy Bentham, whose views were popularized by his student, John Austin. Austin's version of legal positivism was based on the notion that the law is the command of the sovereign backed by the threat of punishment.
• Legal realism is the view that the law should be understood as it is practiced in the courts, law offices, and police stations, rather than as it is set forth in statutes or learned treatises.
• Legal interpretivism is the view that law is not a set of data or of facts, but what lawyers aim to construct or obtain in their morality laden practice.

In the twentieth century, two legal positivists had a profound influence on the philosophy of law. On the continent, Hans Kelsen was the most influential theorist, and his notion of a Grundnorm or ultimate and basic legal norm is still influential. In the Anglophone world, the most influential figure was H.L.A. Hart, who argued that the law should be understood as a system of social rules. Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, can not be grounded in non-normative social facts. Hart's theory, although widely admired, was criticized by a variety of late twentieth century philosophers of law, including Ronald Dworkin, John Finnis, and Joseph Raz.

In recent years, debates over the nature of law have focused on two issues. The first of these is a debate within legal positivism between two schools of thought. The first school is sometimes called exclusive legal positivism, and it is associated with the view that the legal validity of a norm can never depend on its moral correctness. The second school is labeled inclusive legal positivism, and it is associated with the view that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case. Any theory that held that there was a necessary connection between law and morality would not be a form of legal positivism.

The second important debate in recent years concerns interpretivism, a view that is strongly associated with Ronald Dworkin. An interpretivist theory of law holds that legal rights and duties are determined by the best interpretation of the political practices of a particular community. Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be.