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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.

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