Philosophical Foundations of the Nature of Law (Philosophical Foundations of Law)

Philosophy of law

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Although there were differences between these theorists, they shared certain common assumptions. It was agreed, for example, that law is directed at beings who are free—who have the capacity to choose among a range of available actions—intelligent, and self-directing.

In other words, such beings have the capacity to recognize law as a kind of command addressed to them, to understand that fact as a reason to act or at least to deliberate in certain ways, and then actually to act on the basis of that recognition and deliberation. That the creation of law involved some operation of the will of a person also helped to explain how law motivated its subjects to act accordingly.

Philosophical Foundations of the Nature of Law

The legislator as commander aimed, by enacting laws, to produce behaviour of the sort reflected in the content of a law, which required an operation of the will of the subject of the sort just described. All these assumptions supported and formed the general view that an essential feature of law is to play a rational but decisive role in the practical reasoning of its subjects—that is, in their reasoning about what they ought to do. This view would enjoy a resurgence among philosophers of law in the late 20th century. The exact nature and role of that history of practice was a matter of some debate, however.

Coke held that the law of England had in fact not changed in substance since Saxon or even Roman times and that such prodigious history formed the basis of the legitimacy of the English law of his day.

Hale found this claim dubious and held that the law of the present need not be identical to that of the past but only continuous with it; what is instead essential is an ongoing sense among members of the community that the present law is reasonable and appropriate for their circumstances. Common-law theory was an important departure from the command model of law, primarily because it moved away from the statute as a paradigm and instead focused on explaining the operation of the courts and their relation to the larger community.

The activities of judges and practicing lawyers were therefore, for the first time, given pride of place in constructing a philosophical theory of law. That general approach would become dominant throughout the 20th century. As part of their philosophy of law, common-law theorists advanced what is now called a theory of adjudication: Instead, the judge discovered or discerned the common law from relevant past cases, treatises , and common experience. Whereas the first common-law theorists were rather parochial in their aspirations—they sought to explain the ultimate basis of the law of England—their importance has increased considerably since the middle of the 20th century.

Because the political and economic power of common-law countries such as the United States and the United Kingdom have increased internationally, their legal systems, and the legal theories that justify and explain them, have correspondingly grown in influence. Moreover, international law itself has developed exponentially since the end of the World War II , and custom has long been considered to be one of its legitimate sources.

Among the most-influential philosophers of law from the early modern period was Thomas Hobbes — , whose theory of law was a novel amalgam of themes from both the natural-law and command-theory traditions. He also offered some of the earliest criticisms of common-law theory, which would be developed significantly by theorists in the 18th century. For Hobbes, law was the primary instrument of a sovereign by which to serve the ends of government, which were principally peace and the personal security of all its citizens.

Many scholars credit Hobbes as the founder of legal positivism , the dominant philosophical theory of law since the 17th century. The core ideas of legal positivism are that law is essentially a matter of social fact and that it bears at most a contingent connection with moral norms: For example, a putative law that required people to act in ways that led to their own death would fail to be valid positive law because it would violate the natural law of self-preservation, which Hobbes thought was at the foundation of the purpose of government. Hobbes thus attempted a synthesis of the natural-law and command traditions, though some scholars think he was far from successful.

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Papers within the second theme focus on the power of coercion, often overlooked in contemporary legal philosophy. The third set of papers addresses the aims and methods of legal theory, and the role of conceptual analysis. The final section explores new methods and issues in the subject, and offers fresh starting points for future work in the field. Gathering many leading and up-and-coming writers in the subject, the volume offers a snapshot of the best current work in general jurisprudence.

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