Law

== Philosophy of law ==
{{main|Jurisprudence|Philosophy of law}}
{{quote box|bgcolor=#c6dbf7|width=22em|salign=left|quote=But what, after all, is a law? [...] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. [...] On this view, we at once see that it can no longer be asked whose business it is to make laws, since they are acts of the [[general will]]; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills.|source=Jean-Jacques Rousseau, ''[[The Social Contract]]'', II, 6.<ref>Rousseau, ''The Social Contract'', [https://web.archive.org/web/20080222135803/http://ebooks.adelaide.edu.au/r/rousseau/jean_jacques/r864s/book2.html#section16 Book II: Chapter 6 (Law)] </ref>}}

The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what is law?"

=== Analytical jurisprudence ===
{{main|Analytical jurisprudence}}

There have been several attempts to produce "a universally acceptable definition of law". In 1972, [[Dennis Lloyd, Baron Lloyd of Hampstead|Baron Hampstead]] suggested that no such definition could be produced.<ref name="Jurisprudence. Third Edition 1972. Page 39">[[Dennis Lloyd, Baron Lloyd of Hampstead]]. ''Introduction to Jurisprudence''. Third Edition. Stevens & Sons. London. 1972. Second Impression. 1975. p. 39.</ref> McCoubrey and White said that the question "what is law?" has no simple answer.<ref>Mc Coubrey, Hilaire and White, Nigel D. ''Textbook on Jurisprudence''. Second Edition. [[Blackstone Press Limited]]. 1996. {{ISBN|1-85431-582-X}}. p. 2.</ref> [[Glanville Williams]] said that the meaning of the word "law" depends on the context in which that word is used. He said that, for example, "[[early customary law]]" and "[[municipal law]]" were contexts where the word "law" had two different and irreconcilable meanings.<ref>Williams, Glanville. International Law and the Controversy Concerning the Meaning of the Word "Law". Revised version published in Laslett (Editor), ''Philosophy, Politics and Society'' (1956) p. 134 et seq. The original was published in (1945) 22 [[British Year Book of International Law|BYBIL]] 146.</ref> [[Thurman Arnold]] said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned.{{sfn|Arnold|1935|p=36}} It is possible to take the view that there is no need to define the word "law" (e.g. "let's forget about generalities and get down to [[Case law|cases]]").<ref>[[Dennis Lloyd, Baron Lloyd of Hampstead|Baron Lloyd of Hampstead]]. ''Introduction to Jurisprudence''. Third Edition. Stevens & Sons. London. 1972. Second Impression. 1975.</ref>

One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour.{{sfn|Robertson|2006|p=90}} In ''[[The Concept of Law]],'' [[H. L. A. Hart]] argued that law is a "system of rules";{{sfn|Campbell|1993|p=184}} [[John Austin (legal philosopher)|John Austin]] said law was "the command of a sovereign, backed by the threat of a sanction";{{sfn|Bix|2022}} [[Ronald Dworkin]] describes law as an "interpretive concept" to achieve [[justice]] in his text titled ''[[Law's Empire]]'';{{sfn|Dworkin|1986|p=410}} and [[Joseph Raz]] argues law is an "authority" to mediate people's interests.{{sfn|Raz|1979|pp=3-36}} [[Oliver Wendell Holmes Jr.|Oliver Wendell Holmes]] defined law as "the prophecies of what the courts will do in fact, and nothing more pretentious."<ref>Holmes, Oliver Wendell. "The Path of Law" (1897) 10 ''Harvard Law Review'' 457 at 461.</ref> In his ''[[Treatise on Law]],'' [[Thomas Aquinas]] argues that law is a rational ordering of things, which concern the common good, that is promulgated by whoever is charged with the care of the community.<ref>Aquinas, St Thomas. ''Summa Theologica''. 1a2ae, 90.4. Translated by J G Dawson. Ed d'Entreves. (Basil Blackwell). Latin: "nihil est aliud qau edam rationis ordinatio ad bonum commune, ab eo qi curam communitatis habet, promulgata".</ref> This definition has both [[Legal positivism|positivist]] and [[Natural law|naturalist]] elements.<ref>McCoubrey, Hilaire and White, Nigel D. ''Textbook on Jurisprudence''. Second Edition. Blackstone Press Limited. 1996. {{ISBN|1-85431-582-X}}. p. 73.</ref>

=== Connection to morality and justice ===
{{See also|Rule according to higher law}}[[File:Jeremy Bentham by Henry William Pickersgill detail.jpg|thumb|Bentham's utilitarian theories remained dominant in law until the 20th century.]]

Definitions of law often raise the question of the extent to which law incorporates morality.<ref>{{cite journal |last1=Taylor |first1=T. W. |title=The Conception of Morality in Jurisprudence |journal=The Philosophical Review |date=January 1896 |volume=5 |issue=1 |pages=36–50 |doi=10.2307/2176104 |jstor=2176104 }}</ref> [[John Austin (legal philosopher)|John Austin]]'s [[utilitarianism|utilitarian]] answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".{{sfn|Bix|2022}} [[Natural law]]yers, on the other hand, such as [[Jean-Jacques Rousseau]], argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient [[Greek philosophy]] concurrently and in connection with the notion of justice, and re-entered the mainstream of [[Western culture]] through the writings of [[Thomas Aquinas]], notably his ''[[Treatise on Law]]''.

[[Hugo Grotius]], the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason.<ref>[[Fritz Berolzheimer]], ''The World's Legal Philosophies'', 115–116</ref> [[Immanuel Kant]] believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".<ref>[[Immanuel Kant|Kant, Immanuel]], ''Groundwork of the Metaphysics of Morals'', 42 (par. 434)</ref> [[Jeremy Bentham]] and his student Austin, following [[David Hume]], believed that this conflated the [[Is-ought problem|"is" and what "ought to be"]] problem. Bentham and Austin argued for law's [[legal positivism|positivism]]; that real law is entirely separate from "morality".<ref>{{cite encyclopedia |last=Green |first=Leslie |title=Legal Positivism |encyclopedia=Stanford Encyclopedia of Philosophy |url=http://plato.stanford.edu/entries/legal-positivism/|access-date=10 December 2006 |archive-date=9 June 2007 |archive-url=https://web.archive.org/web/20070609094650/http://plato.stanford.edu/entries/legal-positivism/ |url-status=live}}</ref> Kant was also criticised by [[Friedrich Nietzsche]], who rejected the principle of equality, and believed that law emanates from the [[will to power]], and cannot be labeled as "moral" or "immoral".<ref>Nietzsche, ''Zur Genealogie der Moral'', Second Essay, 11</ref><ref>Kazantzakis, ''Friedrich Nietzsche and the Philosophy of Law'', 97–98</ref><ref>Linarelli, ''Nietzsche in Law's Cathedral'', 23–26</ref>

In 1934, the Austrian philosopher [[Hans Kelsen]] continued the positivist tradition in his book the ''[[Pure Theory of Law]]''.<ref>{{cite encyclopedia |last=Marmor |first=Andrei |url=http://plato.stanford.edu/entries/lawphil-theory/ |title=The Pure Theory of Law |access-date=9 February 2007 |encyclopedia=Stanford Encyclopedia of Philosophy |year=1934 |archive-date=9 June 2007 |archive-url=https://web.archive.org/web/20070609130143/http://plato.stanford.edu/entries/lawphil-theory/ |url-status=live}}</ref> Kelsen believed that although law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway ''is'' €500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a [[Basic norm|{{gloss|basic norm}}]] ({{lang-de|Grundnorm}}) instructing us to obey. Kelsen's major opponent, [[Carl Schmitt]], rejected both 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.<ref>Bielefeldt, ''Carl Schmitt's Critique of Liberalism'', 25–26</ref> Therefore, Schmitt advocated a jurisprudence of the exception ([[state of emergency]]), which denied that legal norms could encompass all of the political experience.{{sfn|Finn|1991|pp=170–171}}

Later in the 20th century, [[H. L. A. Hart]] attacked Austin for his simplifications and Kelsen for his fictions in ''[[The Concept of Law]]''.{{sfn|Bayles|1992|p=21}} Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book ''[[Law's Empire]]'', [[Ronald Dworkin]] attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "[[interpretivism (legal)|interpretive]] concept"{{sfn|Dworkin|1986|p=410}} that requires judges to find the best fitting and most just solution to a legal dispute, given their Anglo-American constitutional traditions. [[Joseph Raz]], on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in ''The Authority of Law''.{{sfn|Raz|1979|pp=3-36}} Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation are best left to [[sociology]], rather than jurisprudence.{{sfn|Raz|1979|p=37}}