PHILOSOPHY OF LAW

An Outline

By: Ryan Nelson M. Dela Torre

Submitted to:

Atty. Julius Concepcion

 PHILOSOPHY OF LAW

I. Introduction
A. Philosophy of law (or legal philosophy) is concerned with
providing a general philosophical analysis of law and legal
institutions.
B. Three categories of legal philosophy;
i. analytic jurisprudence
ii. normative jurisprudence
iii. critical theories of law

II. Analytic Jurisprudence

A. Definition
i. To provide an account of what distinguishes law as a
system of norms from other systems of norms, such as
ethical norms.
ii. There is some confusion as to both the value and
character of conceptual analysis in philosophy of law.

iia. Philosophy of law is one of the few philosophical

disciplines that takes conceptual analysis as its principal
concern; most other areas in philosophy have taken
a naturalistic turn, incorporating the tools and methods of the
sciences

iib. Brian Bix (1995) distinguishes different purposes that

can be served by conceptual claims;

iii. Conceptual theories of law can be divided into two main

headings;
B. Theories in Analytic Jurisprudence
1. Natural Law Theory - which is that there is a necessary
relation between the concepts of law and morality.
According to this view, then, the concept of law cannot be
fully articulated without some reference to moral notions
i. Classical naturalism of St. Thomas Aquinas and William
Blackstone. T them as are valid derive all their force,
and all their authority, mediately or immediately, from
this original.
ii. Neo-naturalism of John Finnis (1980)
 iii. Lon Fuller (1964) rejects the idea that there are
necessary moral constraints on the content of law
2. Legal Positivism - opposed to all forms of naturalism.
A. Social Fact Thesis – (a.k.a. Pedigree Thesis) asserts that it
is a necessary truth that legal validity is ultimately a
function of certain kinds of social facts.
i. John Austin’s view:
ii. Hart’s view:
B. Conventionality Thesis - emphasizes law's conventional
nature, claiming that the social facts giving rise to legal
validity are authoritative in virtue of some kind of social
convention
C. Separability Thesis
i. Asserts that law and morality are conceptually
distinct.
ii. there are conflicting views on whether there are
possible legal systems with such constraints.
iia. inclusive positivism
iib. exclusive positivism

3. Ronald Dworkin's Theory - rejects positivism's Social Fact

Thesis on the ground that there are some legal standards the
authority of which cannot be explained in terms of social
facts. Two kinds of interpretation;
a. The most familiar occasion of
interpretation is conversation.
b. Artistic interpretation is yet another:
critics interpret poems and plays and paintings in order
to defend some view of their meaning

III. Normative Jurisprudence

A. Definition - normative, evaluative, and otherwise prescriptive
questions about the law. Three key issues;

B. Theories in Normative Jurisprudence

1. Freedom and the Limits of the Legitimate Law - Laws limit
human autonomy by restricting freedom.
i. Harm Principle by John Stuart Mill

ia. Legal moralism 

ib. Legal paternalism 

 ic. Offense Principle

2. The Obligation to Obey Law - Even if valid law is bad law, we

have some obligation to obey it simply because it is law. Four
categories are ;
i. The argument from gratitude
ii. The argument of fair play
iii. The argument from consent
iv. The argument from general utility grounds
3. The Justification of Punishment - Punishment is unique among
putatively legitimate acts in that its point is to inflict discomfort
on the recipient; an act that is incapable of causing a person
minimal discomfort cannot be characterized as a punishment.

The Five forms are;

i. Retributive
ii. Deterrence
iii. Preventive
iv. Rehabilitative
v. Restitutionary

IV. Critical Theories of Law

A. Legal Realism - Realists eschewed the conceptual approach
of the positivists and naturalists in favor of an empirical
analysis that sought to show how practicing
judges really decide cases.
B. Critical Legal Studies - CLS theorists believe the realists
understate the extent of indeterminacy; whereas the realists
believe that indeterminacy is local in the sense that it is
confined to a certain class of cases, CLS theorists argue that
law is radically (or globally) indeterminate in the sense that
the class of available legal materials rarely, if ever,
logically/causally entails a unique outcome.
C. Law and Economics - argues for the value of economic
analysis in the law both as a description about how courts
and legislators do behave and as a prescription for how such
officials should behave.
i. Richard Posner’s normative view
Kantian side
V. Outsider Jurisprudence - concerned with providing an analysis
of the ways in which law is structured to promote the interests
of white males and to exclude females and persons of color.