Raz attempts to refute this proposition by arguing that, while conformity to the rule of law reduces the abuse of executive power, it does not confer an independent moral merit upon the law. Without this presupposition, Kelsen claims, we cannot understand the legal order. Thus, philosophy of law addresses such diverse topics as theories of contract law, theories of criminal punishment, theories of tort liability, and the question of whether judicial review is justified. [6] Whereas lawyers are interested in what the law is on a specific issue in a specific jurisdiction, philosophers of law are interested in identifying the features of law shared across cultures, times, and places. Hence a murderer could not inherit from his victim. Dworkin claims that, while rules ‘are applicable in an all-or-nothing fashion’, principles and policies have ‘the dimension of weight or importance’. Because the robber’s coercive order lacks the ‘lasting effectiveness without which no basic norm is presupposed’. If the validity of a legal order requires the effectiveness of its basic norm, it follows that when that basic norm of the system no longer attracts general support, there is no law. In other words, it claims that law consists in no more than following certain conventions (e.g. A second important debate, often called the "Hart-Dworkin Debate,"[13] concerns the battle between the two most dominant schools in the late 20th and early 21st century, legal interpretivism and legal positivism. In a ‘hard case’ – like the homicidal beneficiary in Riggs v. Palmer – no rule is immediately applicable. Through his interpretation of these materials, he gives voice to the values to which the legal system is committed. Suppose it is a precedent decided by a higher court which Hercules lacks the power to overrule? Natural law. As we saw in the last chapter, legal positivists are generally content with the fact that the rule of recognition stipulates that X is law. Among the numerous elements of his sophisticated philosophy is the contention that the law contains a solution to almost every problem. This is what happens after a successful revolution. the legislature). A legal system is founded on state coercion; behind its norms is the threat of force. The basic norm is intended to have two major functions. Should he be permitted to inherit? The first maintains that determining what the law requires in a particular case necessarily involves a form of interpretative reasoning. Surely, some contend, this demonstrates that the law is indeed moral. Conventionalism also regards law as incomplete: the law contains ‘gaps’ which judges fill with their own preferences. ‘Soft’ positivists, like H. L. A. Hart, reject this view, and acknowledge that content or merit may be included or incorporated as a condition of validity. Inclusive legal positivists claim that moral considerations may determine the legal validity of a norm, but that it is not necessary that this is the case. Nor does Hart’s view of law as a union of primary and secondary rules provide an accurate model, for it omits or at least neglects the importance of principles and policies. This means its effect would be limited in future cases to its precise wording. Since Kelsen argues that the effectiveness of the whole legal order is a necessary condition of its validity of every norm within it, implicit in the very existence of a legal system is the fact that its laws are generally obeyed. The New York court held, however, that the application of the rules was subject to the principle that ‘no person should profit from his own wrong’. Kelsen’s concept of a norm entails that something ought to be, or that something ought to happen – in particular, that a person ought to behave in a specific way. There are many other normative approaches to the philosophy of law, including critical legal studies and libertarian theories of law. Analytical jurisprudence seeks to provide a general account of the nature of law through the tools of conceptual analysis. In reaching this conclusion, he repudiates three common arguments made for the moral authority of law. Raz argues, however, that the law is autonomous: we can identify its content without recourse to morality. This approach fails to take rights seriously because it treats rights instrumentally – they have no independent existence: rights are simply a means by which to make life better. Positivism began as an inclusivist theory; but influential exclusive legal positivists, including Joseph Raz, John Gardner, and Leslie Green, later rejected the idea. In other words, the law asserts its primacy over all other codes of conduct. From all three, moral questions are excluded. Legal theory, argues Kelsen, is no less a science than physics or chemistry. Since, by definition, the validity of the basic norm cannot depend on any other norm, it has to be presupposed. The existing basic norm no longer exists, and, Kelsen says, once the new laws of the revolutionary government are effectively enforced, lawyers may presuppose a new basic norm. Thus, for example, to claim that the law protects my right of privacy against the Daily Rumour constitutes a conclusion of a certain interpretation. Nor, contrary to the positivist thesis, are there any gaps in the law. Dworkin’s attack on legal positivism is crucially founded on his concern that the law ought to ‘take rights seriously’. Both exhibit a subjective act of will, but only the tax collector’s is objectively valid. Any human conduct, Kelsen says, may be the subject matter of a legal norm. Kelsen does concede that the law consists also of legal acts as determined by these norms. First, it is often argued that to distinguish, as positivists do, between law and other forms of social control, is to neglect the functions of law; and because functions cannot be described in a value-free manner, any functional account of law must involve moral judgments – and so offend the social thesis.

what are the 4 philosophies of law

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