DISCUSSION: Ex.3.6. Read the following text and be ready to discuss it.
DISCUSSION
Ex.3.6. Read the following text and be ready to discuss it.
Philosophy of law
Philosophy of law is a branch of philosophy and jurisprudence which studies basic questions about law and legal systems, such as “what is the law?”, “what is the relationship between law and morality?” and many other similar questions. The question “What is law?” has received the most substantial attention from philosophers of law. Three schools of thought have provided rival answers to this question.
Natural 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.
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 part of this 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.
In the 20th century, two great legal positivists had a profound influence on the philosophy of law. On the continent, Hans Kelsen was the most influential theorist, and his legal views are still influential. In the Anglophone world, the most influential figure was Herbert Lionel Adolphus Hart, Professor of Jurisprudence at Oxford University, who is considered one of the most important legal philosophers. Hart’s most famous work is The Concept of Law first published in 1961. He argued that the law should be understood as a system of social rules. Hart’s theory, although widely admired, was criticized by a variety of late 20th century philosophers of law (R.Dworkin, J.Finnis, J.Raz)