The Philosophy of Law


Law is a system of rules that a society or government develops in order to deal with crime, business agreements and social relationships. The term law also applies to the individuals who are responsible for the enforcement and interpretation of this body of rules.

The study of law is called jurisprudence and is one of the oldest branches of philosophy. There are five main families of views on this subject. One sort of view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. Another sort of view takes jurisprudence as a branch of metanormative inquiry, which is to say that it is continuous with other philosophical fields such as metaethics. A third view takes jurisprudence to consist of a set of interlocking disciplinary disciplines, each of which focuses on an aspect of legal practice. The fourth view is more modest and takes jurisprudence to be just another field of normative philosophy.

A fifth and final view is that of the law as a political institution that legitimizes the use of coercion in order to enforce a framework of social regulation and direction. It is this aspect of the law that has given rise to the most fierce controversies in philosophical history. Early legal positivists, such as Hans Kelsen, argued that the law’s ability to impose its practical demands on people by means of threats and sanctions is what makes it distinct from other normative domains. By contrast, twentieth century legal positivists like H.L.A. Hart and Joseph Raz have tended to deny that coercion is essential to the law’s ability to fulfill its social functions.

There are many different kinds of laws, each with its own special purposes and problems. These include criminal law, family law, contract law, tort law, property law, immigration and nationality law and labour law. Other important areas of law are intellectual property law, medical jurisprudence and biolaw.

Almost any situation can be classified as having some kind of law. The law can be based on contracts, statutes, case law and regulations. It can also be based on custom and tradition, the bible or some other religious text.

The function of the law varies from nation to nation, but there are four principal kinds of law: establishing standards, maintaining order, resolving disputes and protecting liberties and rights. The ability of the law to accomplish these objectives varies with the kind of political system in place. An authoritarian regime, for example, may keep the peace and maintain the status quo but it will often oppress minorities and promote social injustice. Conversely, a democratic government may achieve the same goals but will likely be more flexible in adapting to social change. In each of these cases, the nature of the rule-making process and the mechanisms for enforcing them will play a key role in how well the law serves its purposes.

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