Philosophy of law (not to be confused with the theory of law, including distinction made by Hans Kelsen in the “Pure Theory of Law“) is the study and analysis of the concepts and fundamental principles of law and legislation. Discipline at the intersection between philosophy, legal studies and political science, it is designated as the “case law” or “legal theory”. Among the main currents of the theory of law include legal positivism, which Kelsen (1881-1973) provided the titles of nobility, the natural right (Ronald Dworkin), realism (Justice Oliver Holmes in Unites States or Axel Hägerström in Sweden), sometimes closer to the sociology of law, with emphasis on actual practice of legal actors.
Fundamental questions of philosophy of law
Legal philosophy analyzes the fundamental law issues such as:
What is right?
What is fair?
What is the relationship between law and justice?
How are born the right standards?
What are the technical interpretation of the law?
What is the basis of the validity (of their normative character) on the right (see the debate between Hans Kelsen and Carl Schmitt, the one supporting the “normativism” and the other the “decisionism”)?
What is the relationship between morality and law (including the debate on human rights and the role of ethical values in relation to positive law, that is to say existing laws and regulatory texts)?
Should we oppose to the unjust law? (question may arise, for example, in the case of fascist laws of the Third Reich).
Philosophy of law and legal theory
The “philosophy of law”, a term that comes from the Elements of the Philosophy of Right (1821) by Hegel, is often distinguished from “legal theory” (Rechtlehre), although the criteria vary according to the authors, and the distinction is often difficult to implement.
One may question the value of the “of”: is it a “from” genitive, or objective? In other words, is the philosophy that is subject to the law, or the law that expresses his philosophy or his mind? There is, in fact, an issue which is, in the words of Kant, the conflict of the faculties. The philosophy of law, historically, not to be confused with the interpretation of legal norms, even less with the study of jurisprudence. It is the philosopher, or rather the philosophers, who consider the right from a viewpoint that it is intended to be founder (or refounder) for the right itself. In this view, the philosophy of law is not a branch of law, but of philosophy. Of course, this does not require to subscribe to Kant when it determines, in its Doctrine of law, that the law is in itself, regardless of philosophy, a beautiful head, but no brains.
Or the question of the hierarchy of value causes a problem, logic, redoubtable in nature, that each particular philosophy of law tent, explicitly or implicitly, to solve. If justice is to prioritize different values to be assigned to a pre-eminence over the other, it is necessary to assess the relative value of different values. Or how to assess a value, which is not a content but a standard, to the outside of this standard? It is obvious that any assessment is itself a judgment of value, not of fact. We must, it seems, assume a fundamental value, to which all others are subordinate. (See especially Kelsen, but also the work of Rawls’ theory of justice).
The theory of law can be equated, though imperfectly, to legal positivism, mainly represented by Hans Kelsen and his Pure theory of law, which tries to establish a true “science of law” (the basis of legal theory and objective right), wanting to be descriptive and not prescriptive (principle of value neutrality). It simply try to says, to explain, to state the law as it is, not to criticize the existing law in the name of ethical values or subjective political views. According to positivism, critics on the right, and what it should be, emanate from the subjective and political position of the actors of law and not a question of truth. In this sense, law is normative, although based on a fundamental norm, but the scientist is not to endorse the standards he is studying.
By contrast, the philosophy of law may be likened to natural law, which says that it is possible to know the moral principles governing the law and, through this, to teach what should be the law, which must be the right.