This chapter examines the philosophical issues raised by the law’s use of norms, i.e. things that require a standard of behaviour, such as orders, rules, and duties. The discussions cover norms as exclusionary reasons; the variety of norms; and the Hohfeldian characterisation of legal norms.
Chapter
This chapter examines the important theory of legal positivism that has long dominated jurisprudence. It explains the core ideas of the theory, and then considers the leading proponents of classical legal positivism, especially the leading nineteenth century philosophers, Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but he insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s.
Chapter
This chapter examines the theories of the foremost legal positivists of the nineteenth century: Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but who insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s. A number of key concepts analysed by both of these theorists are examined and compared, including their definitions of law, commands, sovereignty, and sanctions.
Chapter
J. E. Penner and E. Melissaris
This chapter explores classical positivism. The discussions cover Bentham’s concept of jurisprudence; Bentham and Austin’s command theory of law; the attachment of sanctions; Kelsen’s pure theory of law; and the significance of classical positivist theories.
Book
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. The Concept of Law is an important work of legal philosophy. It was first published fifty years ago. This book includes a new introduction that sets the book in the context of subsequent developments in social and political philosophy, clarifying misunderstandings of Hart's project and highlighting central tensions and problems in the work. Topics covered include: sovereign and subject, the law as the unions of primary and secondary rules, formalism, rule-scepticism, justice, morality, and international law.
Chapter
Critical legal theory rejects what is generally regarded as the natural order of things, be it the free market (in the case of Critical Legal Studies), ‘meta-narratives’ (postmodernism), the conception of ‘race’ (Critical Race Theory), and patriarchy (in the case of feminist jurisprudence). Critical legal theorists share a profound scepticism about many of the questions that have long been regarded as at the core of legal theory. This chapter touches on the first three of these movements. It first discusses the development of critical legal studies and then turns to postmodern legal theory, considering the views of Jacques Lacan, Jacques Derrida, Michel Foucault, and Jürgen Habermas. It then outlines the principal claims of Critical Race Theory (CRT), and considers the relationships between CRT and feminist theory and CRT and postmodernism.
Chapter
All critical legal theorists share a deep cynicism about many of the important questions of legal theory. Fundamentally they reject many of the assumptions of both the legal and political order: for example, the free market, ‘meta-narratives’, and male or racial domination. This chapter first discusses the development of critical legal studies and then turns to postmodern legal theory, considering the views of Jacques Lacan, Jacques Derrida, Michel Foucault, and Jürgen Habermas. It then goes on to outlines the principal claims of critical race theory (CRT). It also considers the relationships between CRT and feminist theory and CRT and postmodernism.
Chapter
This chapter discusses the essential elements of Dworkin’s theory of law. It focuses on Dworkin’s assault on positivism and his insistence upon the close relationship between morals and the law. By denying the positivist separation between law and morals, he expounds a theory that rejects the proposition that judges either do or should make law, and contends instead that judges have an obligation to find and express ‘the soundest theory of law’ on which to decide hard cases; and concludes that, since judges (who are unelected officials) do not make law, the judicial role is democratic and prospective. His approach is based on the notion that only by adopting this view of the judicial function can the law take rights seriously.
Chapter
J. E. Penner and E. Melissaris
This chapter explores feminist legal theory. The discussions cover sexism and law; the varieties of feminist legal theory; the work of Catharine MacKinnon; and a revival of liberal feminism led by philosopher Martha Nussbaum.
Chapter
Many of the theories discussed in the previous chapters neglect or even ignore the position of women in society, and how they are treated by the law, the legal system, and other aspects of social, economic, and political life. Feminist writers have, in various ways, sought to correct this imbalance or prejudice. This chapter examines several key elements of feminist legal theories, and explores the origins of feminism; legal feminisms (liberal feminism, radical feminism, postmodern feminism, and difference feminism) and their impact on legal philosophy. It discusses the enormous literature on the subject, and its criticism of conventional jurisprudence.
Chapter
While orthodox legal theory has purported to be gender-blind, it often neglects or in some instances even ignores the position of women. This silence has been criticized by feminist theorists who have placed discrimination against, and the subordination of, women firmly on the jurisprudential agenda. It is a development that has had an enormous impact on legal education. It extends also to almost every branch of the law and legal system. This chapter examines the key elements of feminist legal theory, including the following: the origins of feminism; and legal feminisms (liberal feminism, radical feminism, postmodern feminism, and difference feminism).
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter first explains the open texture of law, which shows that there are, indeed, areas of conduct where much must be left to be developed by courts or officials, striking a balance between competing interests that vary in weight from case to case. It then discusses the varieties of rule-scepticism, finality and infallibility in judicial decision, and uncertainty in the rule of recognition.
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. According to the theory criticized in Chapter IV, the foundations of a legal system consist of a situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves habitually obey no one. While this theory fails to account for some of the salient features of a modern municipal legal system, it does contain, though in a blurred and misleading form, certain truths about certain important aspects of law. These truths can, however, only be clearly presented, and their importance rightly assessed, in terms of the more complex social situation where a secondary rule of recognition is accepted and used for the identification of primary rules of obligation. It is this situation which deserves to be called the foundations of a legal system. This chapter discusses various elements of this situation which have received only partial or misleading expression in the theory of sovereignty and elsewhere.
Chapter
J. E. Penner and E. Melissaris
This chapter explores how the philosophy of law meshes with political philosophy more generally, and considers three questions. First, is there a duty on those who have the power to govern, to do so, and if so, what sort of duty is it? Second, for those who take up the position of governors, what gives them the right to rule over others? Finally, the chapter asks whether the subjects of the law have a general moral obligation to obey the law.
Chapter
J. E. Penner and E. Melissaris
This chapter explores Hart’s construction of a better theory, in particular in contrast to the theory set out by Austin. The discussions cover the importance of rules; obligation and the internal aspect of rules; the union of primary and secondary rules; the rule of recognition; legal systems and the importance of officials; public international law in Hart’s theory; and the significance of Hart’s theory.
Chapter
J. E. Penner and E. Melissaris
This chapter explores Hart’s criticisms of classical positivist theory and certain moralist claims about the law. The discussions cover Hart’s methodology; Hart’s gunman and the critique of command theory; and Hart and moral analyses of positive law.
Chapter
This chapter, which discusses the development of historical and anthropological jurisprudence, first identifies the characteristics that distinguish the Western legal tradition from other systems. It then discusses the German Romantic Movement, which found its most powerful spokesman in jurist, Friedrich Karl von Savigny; its foremost champion in England was Sir Henry Maine. Maine exercised a significant influence over what has come to be called anthropological jurisprudence or legal anthropology, an approach to law that developed in the twentieth century and which was recognized as essential to an understanding of law by the American realist judge Oliver Wendell Holmes Jr.
Chapter
This chapter, which discusses the development of historical and anthropological jurisprudence, first identifies the characteristics that distinguish the Western legal tradition from other systems. It then discusses the German Romantic Movement, which found its most powerful spokesman in the jurist, Friedrich Karl von Savigny; its foremost champion in England was Sir Henry Maine. Maine exercised a significant influence over what has come to be called anthropological jurisprudence or legal anthropology, an approach to law that developed in the twentieth century and which was recognized as essential to an understanding of law by the American realist judge Oliver Wendell Holmes Jr.
Chapter
H. L. A. Hart
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter considers two principal sources of doubt concerning the legal character of international law and, with them, the steps which theorists have taken to meet these doubts. Both forms of doubt arise from an adverse comparison of international law with municipal law, which is taken as the clear, standard example of what law is. The first has its roots deep in the conception of law as fundamentally a matter of orders backed by threats and contrasts the character of the rules of international law with those of municipal law. The second form of doubt springs from the obscure belief that states are fundamentally incapable of being the subjects of legal obligation, and contrasts the character of the subjects of international law with those of municipal law.
Chapter
J. E. Penner and E. Melissaris
This chapter explores John Rawls’s political liberalism, a contemporary reworking of the idea of the social contract and one which straddles the boundary between Hobbesian rationality and Kantian reasonableness. The discussions cover the ‘fact of reasonable pluralism’; the ‘original position’ and Rawls’s political constructivism; the principles of justice; the stability of the liberal State; the stages of application of the political conception of justice; and justice and liberal legitimacy.
