As a result, Dworkin rejects not only the social fact thesis of positivism, but also what he considers to be the underlying presuppositions of legal theory. Hart distinguishes two perspectives from which a range of legal practices can be understood. A legal practice can be understood both from the “internal” perspective of the person who accepts the practice as a legitimate guideline of conduct and from the “external” perspective of the observer who wishes to understand the practice but does not accept it as authoritative or legitimate. Karl Popper founded the theory of critical rationalism. According to Reinhold Zippelius, many advances in law and jurisprudence take place through operations of critical rationalism. He writes: “Let the search for the concept of law, its relationship to reality and justice proceed experimentally, by designing, testing and improving experimentally solutions to problems”, by empirically seeking solutions to problems that harmonize equitably with reality, by projecting, testing and improving solutions). [56] If you are entering your first year of law school and are completely new to formal legal education, it is a good idea to devote more reading time to legal theory, given its importance and applicability to various areas of law. John Austin and Jeremy Bentham were the first legal positivists who tried to provide a descriptive account of the law describing the law as it is. Austin explained the descriptive orientation of legal positivism by saying, “The existence of law is one thing; His merit and merit is another. Whether or not this is the case is a question; Whether or not it conforms to a supposed standard is another question. [37] For Austin and Bentham, a society is headed by a sovereign who has de facto authority. Thanks to the authority of the sovereign, laws emerge that are supported for Austin and Bentham by sanctions for non-compliance.
Along with Hume, Bentham was an early and fervent supporter of the utilitarian concept and a passionate prison reformer, defender of democracy, and staunch atheist. Bentham`s views on law and jurisprudence were popularized by his pupil John Austin. Austin was the first holder of the chair of law at the new University of London in 1829. Austin`s utilitarian answer to the question “What is law?” was that law was “orders, aided by the threat of sanctions, from a ruler whom men are accustomed to obey.” [38] H. L. A. Hart criticized Austin and Bentham`s early legal positivism because the theory of command did not take into account the individual`s respect for the law. Along the way, we`ll look at the most influential ideas in Anglo-American legal theory: Kant`s theory of retaliation and its modern variants in the works of Herbert Morris and Michael Moore, the classical utilitarianism of Bentham and Mill, Aristotle`s concept of corrective justice and its modern variants by Richard Epstein and George Fletcher, Coase`s theorem, Guido Calabresi`s effective approach to the cost of accidents, the ideal of rehabilitation for criminal law by B.F. The Scandinavian school of legal realism has argued that law can be explained by the empirical methods of social scientists. [51] Prominent right-wing Scandinavian realists include Alf Ross, Axel Hägerström and Karl Olivecrona. Scandinavian legal realists also took a naturalistic approach to law.
[52] The most important questions in analytical jurisprudence are: “What are laws?”; What is the law? »; “What is the relationship between law and power/sociology?”; and “What is the relationship between law and morality?” Legal positivism is the dominant theory, although there is a growing number of critics offering their own interpretations. Posner agrees with the common law theory of efficiency, according to which “the common law is better (not perfectly) explained as a system for maximizing the wealth of society” (Posner 1992, p. 23). In its general sense, the theory of natural law can be compared to both natural law and general law, which is understood on the basis of analogy with the laws of physical science. Natural law is often opposed to positive law, which asserts that law is the product of human action and human will. Although this task is generally interpreted as an attempt to analyze concepts of law and the legal system, there is some confusion as to the value and character of conceptual analysis in legal philosophy. As Brian Leiter (1998) points out, philosophy of law is one of the few philosophical disciplines that considers conceptual analysis to be its primary concern; Most other areas of philosophy have taken a naturalistic turn, incorporating the tools and methods of science. To illustrate the role of conceptual analysis in law, Brian Bix (1995) distinguishes a number of different purposes that conceptual claims can serve: The most speculative and problematic argument is based on one version of natural law.Another argument rests on an important distinction between what I have called the second-order choice of law and the first-order choice. Another is based on a more nuanced understanding of what it means for individuals to be (or bind) to the legitimate governance of a legal system. The last argument is based on legal pluralism, but not of the usual type. All areas of law, particularly the major areas of common law, property, tort, crime and contract, bear the stamp of economic reasoning. It is not a rebuttal that only a few legal opinions contain explicit references to economic terms. Often, the true reasons for the decision are obscured rather than informed by the rhetoric characteristic of judicial opinions. In fact, legal education is primarily about learning to dig beneath the rhetorical surface to find these reasons, many of which may turn out to be economic (Posner 1992, 23). It has now become common practice to identify Judge Oliver Wendell Holmes Jr. as the leading precursor of American legal realism (other influences include Roscoe Pound, Karl Llewellyn, and Judge Benjamin Cardozo). Karl Llewellyn, another founder of the American legal realism movement, also believed that the law is little more than a glue in the hands of judges who can shape the outcome of cases according to their personal values or political decisions. [50] Although (3) is logically independent of (1) and (2), (1) (2) seems to imply: To the extent that judges decide legally vague cases, they must create a new right.
My sense of the “state of the country” is that debates about the question “What is law?” have become more exciting lately (Scott Shapiro`s work is just one example) – but in my opinion, the focus has shifted from the nature of law to normative legal theory. Potentially exciting developments that are very recent include the emergence of experimental jurisprudence and the exploration of the links between metaethics and metajurisprudence. This article argues that the commemoration of the Administrative Procedure Act (APA) should take into account the role it has played in promoting and countering racial justice, as well as the role that racial justice advocates have played in shaping its interpretation. The APA was not intended to promote racial justice; Indeed, its provisions isolated some of the most racist policies of the mid-twentieth century from challenges.
