philosophy of law

The philosophy of law is also known as jurisprudence. Normative jurisprudence is essentially political philosophy and asks "what should law be?". Analytic jurisprudence, on the other hand, is a distinctive field which asks "what is law?". An early famous philosopher of law was John Austin, a student of Jeremy Bentham and first chair of law at the new University of London from 1829. Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". This approach was long accepted, especially as an alternative to natural law theory. Natural lawyers, such as Jean-Jacques Rousseau, argue that human law reflects essentially moral and unchangeable laws of nature. Immanuel Kant, for instance, believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". Austin and Bentham, following David Hume, thought this conflated what "is" and what "ought to be" the case. They believed in law's positivism, that real law is entirely separate from "morality". Kant was also criticised by Friedrich Nietzsche, who believed that law emanates from The Will to Power and cannot be labelled as "moral" or "immoral". Thus, Nietzsche criticised the principle of equality, and believed that law should be committed to freedom to engage in will to power.

In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law. Kelsen believed that though law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. Whilst laws are positive "is" statements (e.g. the fine for reversing on a highway is €500), law tells us what we "should" do (i.e. not drive backwards). So every legal system can be hypothesised to have a basic norm (Grundnorm) telling us we should obey the law. Carl Schmitt, Kelsen's major intellectual opponent, rejected positivism, and the idea of the rule of law, because he did not accept the primacy of abstract normative principles over concrete political positions and decisions. Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass of all political experience.