Philosophy of law facts for kids

Philosophy of law is a part of philosophy that looks at what law really is. It also explores how law connects to other important ideas like what is right and wrong (ethics) and how societies should be run (political philosophy).

This field asks big questions like: "What exactly is law?" "How do we know if a law is real or valid?" and "How does law relate to our ideas of morality?" Sometimes, people use "philosophy of law" and "jurisprudence" to mean the same thing.

Philosophy of law is usually split into two main parts:

• Analytical jurisprudence: This part tries to define what law is and what it isn't. It looks for the key features that make something a law.
• Normative jurisprudence: This part explores what laws *should* be. It also looks at how laws guide people's actions.

Understanding What Law Is: Analytical Jurisprudence

Analytical jurisprudence uses deep thinking to figure out what law is all about. It's different from studying specific laws in one country. Instead, it tries to find the basic features of law that are true everywhere and at all times.

Lawyers might want to know what the law says about a certain topic in their area. But philosophers of law want to know what makes law special, no matter where you are or what time period it is. They ask: "What makes law different from just rules, or from what's right and wrong, or from politics?"

Some scholars also look at different areas within law, like rules about agreements (contract law) or rules about harm (tort law). They try to understand what makes each area unique.

Many different ideas have grown around the nature of law. Here are some of the most important ones:

Natural Law Theory: Law and Morality

Natural moral law theory suggests that some laws are built into nature itself. These laws are also connected to what is morally right. This idea means that if a law made by people goes against these natural, moral laws, then it's not a real law, even if it's enforced. A famous saying for this is: "An unjust law is no law at all."

This idea started a long time ago with thinkers like Thomas Aquinas. More recently, John Finnis helped bring new interest to this theory.

Legal Positivism: Law from Society

Legal positivism says that law comes mainly from social facts. This means a law is valid because of how it was made, not necessarily because it's morally good.

Legal positivism has three main ideas:

• The pedigree idea: This says you find out if something is a law by looking at its source. For example, if a proper government official made the rule, then it's a valid law. It doesn't matter if the rule is fair or practical.
• The separability idea: This states that law and morality are separate ideas. While laws might sometimes be moral, they don't have to be. Some positivists, like Joseph Raz, even say that morality can't be part of law at all.
• The discretion idea: This suggests that judges sometimes create new law. This happens when existing laws aren't clear enough to decide a case.

Early legal positivists like John Austin thought law was just commands from a ruler, backed by punishment. Modern positivists don't usually believe this anymore.

Two very important positivists in the 20th century were Hans Kelsen and H. L. A. Hart. Kelsen is known for his idea of a 'grundnorm' (a basic legal rule). Hart argued that law is a system of rules. He said there are "primary rules" that guide people's actions and "secondary rules" that explain how to change, identify, or judge the primary rules.

Legal Realism: Law in Practice

Legal realism argues that law is really what courts, police, and lawyers decide. These decisions can sometimes be based on personal feelings or not always follow strict rules. Legal realists believe law isn't just a perfect system of rules.

Instead, they think we should study law by looking at how it's actually used in the real world. This is why legal realism is often connected to the sociology of law, which studies law as a social system. Important figures in legal realism include Oliver Wendell Holmes Jr. and John Chipman Gray.

Legal Interpretivism: Law and Human Understanding

Legal interpretivism says that law isn't just about where it came from. It also depends on how people interpret it, and this interpretation is guided by the moral ideas of a community.

This means that when judges make decisions, they try to do it in a way that best fits the moral ideas and social practices of their society. A key idea here is that you might not know what a society's laws are until you understand the moral reasons behind its practices. Ronald Dworkin developed this idea in his book Law's Empire.

What Law Should Be: Normative Jurisprudence

Besides understanding what law *is*, legal philosophy also looks at what law *should* be. Normative jurisprudence asks questions like: "What is the main goal of law?" or "What moral ideas should law be based on?"

Here are some important approaches in this area:

• Utilitarianism: This view says that laws should be made to create the best possible results for the most people. Jeremy Bentham was a key thinker in this area. Today, this idea is often used in the field of law and economics.
• Deontology: This idea suggests that laws should protect people's freedom and rights. Immanuel Kant developed a famous deontological theory of law. Ronald Dworkin also has a deontological approach.
• Virtue ethics: This approach focuses on how laws can help citizens develop good character traits, or "virtues." This idea comes from Aristotle.

There are many other ideas in normative jurisprudence, like critical legal studies and libertarian theories of law.

Philosophical Views on Legal Problems

Philosophers of law also look at specific problems that come up in different areas of law. These areas include constitutional law (rules for government), Contract law (rules for agreements), Criminal law (rules about crimes), and Tort law (rules about harm).

So, they might discuss things like theories of punishment for crimes, or why judges can review laws.

Important Thinkers in Law Philosophy

See also

In Spanish: Ciencia del derecho para niños