Introduction on the Philosophy of Law

The philosophy of law has two meanings :

– the analysis od the nature of law and legal systems

– the critical evaluation of the basis of legal authority and of the moral rationale behind legal decision making

Analytic jurisprudence :

Historically, there have been two distinct and incompatible views concerning the nature of law :

– According to the ‘natural law” tradition (Middle Ages, roots going back to Stoics and Aristotle), the law must necessarily conform to the universal law of nature.

– By contrast, the positivist view, developed by Bentham and Austin, claims that law can be defined without any reference to its content : “The existence of law is one thing, its merit of demerit another” wrote Austin.

According to Austin, law is simply the command od the sovereign, backed by appropriate sanctions. The philosopher Hart has produced a highly sophisticated of positivism in his Concept of Law: law is not merely a list of arbitrary commands. It is a complex union of ‘primary and secondary rules” whose legitimacy depends on their being ultimately derived from a basic “rule of recognition”.

Ethical Jurisprudence :

The chief problem in ethical jurisprudence concerns the difficult notion of responsibility. Under what circumstances are the courts justified in holding a man responsible for his acts (or omissions ?). In this connection, the time-honoured maxim “actus non facit reum nisi mens sit rea” (an act does not make a man guilty unless the mind is guilty) has received much philosophical scrutinity. What exactly is the “mental” element that is supposed to be necessary for guilt ? Following the aristotelian tradition that makes voluntariness the basic requirement for responsibility, many jurists have defined mens rea in terms of a prior act of will or volition. But this seems inadequate to cope with the cases where people are held responsible for inadvertance of negligence.

Intention prodives another stumbling block for the theory of responsibility.


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