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8/12/2019 Normative Theories of Law
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Normative theories of law
In addition to the question, "What is law?," legal philosophy is also concerned with normative
theories of law. What is the goal or purpose of law? What moral or political theories provide a
foundation for the law? Three approaches have been influential in contemporary moral and political
philosophy, and these approaches are reflected in normative theories of law:
Utilitarianism is the view that the laws should be crafted so as to produce the best
consequences. Historically, utilitarian thinking about law is associated with the great
philosopher, Jeremy Bentham. In contemporary legal theory, the utilitarian approach is
frequently championed by scholars who work in the law and economics tradition.
Deontology is the view that the laws should protect individual autonomy, liberty, or rights. The
philosopher Immanuel Kant formulated a deontological theory of law (but not the only possible).
A contemporary deontological approach can be found in the work of the legalphilosopher Ronald Dworkin.
Aretaic moral theories such as contemporary virtue ethics emphasize the role of character in
morality. Virtue jurisprudence is the view that the laws should promote the development of
virtuous characters by citizens. Historically, this approach is associated with Aristotle.
Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.
There are many other normative approaches to the philosophy of law, including critical legal
studies and libertarian theories of law. Studies of evaluative diversity recognize adherence to law as
one of several alternative symbiotic forms of evaluation
Normative Jurisprudence
In addition to the question, "What is law?", legal philosophy is also concerned with normative, or
"evaluative" theories of law. What is the goal or purpose of law? What moral or political theories
provide a foundation for the law? What is the proper function of law? What sorts of acts should be
subject to punishment, and what sorts of punishment should be permitted? What is justice? What
rights do we have? Is there a duty to obey the law? What value has the rule of law? Some of the
different schools and leading thinkers are as follows.
Virtue jurisprudence
Aretaic moral theories such as contemporary virtue ethics emphasize the role of character in
morality. Virtue jurisprudence is the view that the laws should promote the development of virtuous
characters by citizens. Historically, this approach is associated mainly with Aristotle or Thomas
Aquinas later. Contemporary virtue jurisprudence is inspired by philosophical work on virtue ethics.
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Deontology
Deontology is "the theory of duty or moral obligation." The philosopher Immanuel Kant formulated
one influential deontological theory of law. He argued that any rule we follow must be able to be
universally applied, i.e. we must be willing for everyone to follow that rule. A contemporary
deontological approach can be found in the work of the legal philosopher Ronald Dworkin.
Utilitarianism
Utilitarianism is the view that the laws should be crafted so as to produce the best consequences for
the greatest number of people possible. Historically, utilitarian thinking about law is associated with
the great philosopher, Jeremy Bentham. John Stuart Mill was a pupil of Bentham's and was the torch
bearer for utilitarian philosophy through the late nineteenth century.[38] In contemporary legal
theory, the utilitarian approach is frequently championed by scholars who work in the law and
economics tradition. Also see Lysander Spooner.
John Rawls
John Rawls was an American philosopher, a professor of political philosophy at Harvard University
and author of A Theory of Justice (1971), Political Liberalism, Justice as Fairness: A Restatement,
and The Law of Peoples. He is widely considered one of the most important English-language
political philosophers of the 20th century. His theory of justice uses a device called the original
position to ask us which principles of justice we would choose to regulate the basic institutions of our
society if we were behind a 'veil of ignorance.' Imagine we do not know who we are - our race, sex,
wealth status, class, or any distinguishing feature - so that we would not be biased in our own
favour. Rawls argues from this 'original position' that we would choose exactly the same political
liberties for everyone, like freedom of speech, the right to vote and so on. Also, we would choose a
system where there is only inequality because that produces incentives enough for the economic
well-being of all society, especially the poorest. This is Rawls's famous 'difference principle'. Justice
is fairness, in the sense that the fairness of the original position of choice guarantees the fairness of
the principles chosen in that position.
There are many other normative approaches to the philosophy of law, including critical legal studies
and libertarian theories of law. ---------------------------------------------------------------------------------------
The philosophy of law is usually recognized as jurisprudence. Normative jurisprudence is
fundamentally political philosophy, and asks, what should law be? while analytic jurisprudence asks
"what is law?". John Austin's utilitarian reply was that law is "commands, backed by danger of
sanctions, from a sovereign, to whom public have habits of obedience".
Natural lawyers on the new side, such as Jean-Jacques Rousseau, argue that law reflects
essentially moral and fixed laws of nature. The concept of "natural law" raised in ancient Greek
philosophy alongside and in entanglement with the notion of justice, and re-entered the mainstream
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of Western culture through the writings of Thomas Aquinas and the commentaries of Islamic
philosopher and jurist Averroes.
St. Thomas Aquinas viewed laws as an extension of God’s rule, given to mankind to share in his
creativity and to lead a virtuous life. Aquinas believed laws could be inherently good or bad, and only
the good laws would be binding on subjects. He stated tha t just laws were for ‘the common good’
and should not ‘exceed the power of the lawgiver’, laws which went against God should never be
obeyed.
Hugo Grotius, the founder of a purely rationalistic arrangement of natural law, argued that law arises
from both a social impulse — as Aristotle had indicated — and reason. Immanuel Kant believed a
moral imperative requires laws "be chosen as though they should hold as universal laws of nature".
Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the "is"
and what "ought to be" problem. Bentham and Austin argued for law's positivism; that real law is
completely divided from "morality". Kant was also criticised by Friedrich Nietzsche, who rejected the
principle of equality, and believed that law emanates from the will to power, and cannot be labelled
as "moral" or "immoral".
In 1934, the Austrian philosopher Hans Kelsen continued the positivist custom in his book the Pure
Theory of Law. Kelsen believed that although law is separate from morality, it is endowed with
"normativity"; meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for
reversing on a highway is €500); law tells us what we "should" do. Thus, each legal system can be
hypothesised to have a basic norm (Grundnorm) instructing us to obey. Kelsen's major opponent,
Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not admit the
primacy of abstract normative principles over actual political positions and decisions. Thus, Schmittadvocated a jurisprudence of the exception (state of emergency), which denied that legal norms
could include of all political experience.
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his
fictions in The Concept of Law. Hart argued law is a system of rules, divided into primary (rules of
conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary
rules are further divided into rules of adjudication (to resolve legal disputes), rules of change
(allowing laws to be varied) and the rule of recognition (allowing laws to be recognized as valid). Two
of Hart's students continued the debate: In his book Law's Empire, Ronald Dworkin attacked Hart
and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an"interpretive concept", that needs judges to find the best fitting and most just solution to a legal
dispute, given their constitutional traditions. Joseph Raz, on the other hand, defended the positivist
outlook and criticised Hart's "soft social thesis" approach in The Authority of Law. Raz argues that
law is authority, identifiable solely through social sources and without reference to moral reasoning.
In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are
best left to sociology, rather than jurisprudence.