There are many other normative approaches to legal philosophy, including critical legal studies and libertarian legal theories. Historically, legal realism has emerged as a reaction to legal formalism, a particular model of legal reasoning that equates legal reasoning with syllogistic argumentation. According to the formalistic model, the legal result (i.e. detention) follows logically from the legal norm (main premise) and from a determination of the relevant facts (secondary premise). Realists believe that formalism underestimates the capabilities of judicial law-making insofar as it presents legal results as they are syllogistically provoked by the applicable rules and facts. For if legal results are logically implied by sentences that bind judges, it follows that judges do not have the legal authority to obtain contradictory results. Legal philosophy is a branch of philosophy that studies the nature of law and the relationship of law to other normative systems, especially ethics and political philosophy. [1] [2] It asks questions such as “What is law?”, “What are the criteria for legal validity?” and “What is the relationship between law and morality?” Legal philosophy and jurisprudence are often used interchangeably, although jurisprudence sometimes includes forms of reasoning that fit into economics or sociology. [3] [4] Legal philosophy topics tend to be more abstract than related topics of political philosophy and applied ethics. For example, while the question of how to correctly interpret the Constitution of the United States belongs to democratic theory (and therefore to political philosophy), the analysis of legal interpretation is a matter of legal philosophy. While the question of whether the death penalty is morally permissible falls under the rubric of applied ethics, the question of whether the imposition of a penalty can be justified is a matter of legal philosophy.

It is worth noting the relationship between legal realism, formalism and positivism. Although it is often assumed that formalism is accompanied by positivism, it turns out that legal realism is not only compatible with positivism, but also presupposes the truth of the three fundamental theses of positivism. Indeed, the realist recognizes that the law is essentially the product of official activity, but believes that judicial legislation is more frequent than is generally believed. But the idea that law is essentially the product of official activity presupposes the truth of positivism`s theses on conventionality, social facts and separability. While realists` concerns were empirical (i.e., seeking to identify the psychological and sociological factors that influenced judicial decision-making), their implicit conceptual obligations were decidedly positivist. In this passage, Blackstone articulates the two statements that form the theoretical core of classical naturalism: 1) There can be no legally valid norms that contradict natural law; and 2) all valid laws derive their power and authority from natural law. From this point of view, to paraphrase Augustine, an unjust law is not a law at all. Analytical jurisprudence is the attempt to clarify the nature of law and legal concepts. Such a science is rooted in the broader tradition of analytic philosophy. This philosophy, which was associated with people like Bertrand Russell and G.E. Moore, attempts to explain the basic concepts of the empirical world. For example, what is “truth”? What is “love”? What does it mean to say that someone acted “intentionally”? In answering these questions, analytic philosophers have been associated with a particular style and method.

They were known for avoiding blanket generalizations, for their focus on logic, attention to detail, and appreciation of nuanced language. It is the application of this way of thinking to the world of law that is embodied in analytical jurisprudence. The leading example of this fellowship is H.L.A. Hart`s The Concept of Law, in which Hart asks: What is “law”? In the American context, probably the most important work of analytical jurisprudence is Wesley Newcomb Hohfeld`s attempt to understand the fundamentals of legal relations. According to the thesis of conventionality, it is a conceptual legal truth that legal validity can ultimately be explained on the basis of criteria that are decisive on the basis of some kind of social convention. For example, H.L.A. Hart (1996) argues that the criteria for legal validity are contained in a recognition rule that establishes rules for the creation, amendment, and jurisdiction of the law. According to Hart, the recognition rule based on an agreement between public servants is decisive in considering their criteria as standards governing their conduct as civil servants.

Although Joseph Raz does not seem to support Hart`s view of a primary recognition rule that includes validity criteria, he also believes that validity criteria are authoritative only because of an agreement between officials. The second erroneous criticism is that, since literature is primarily descriptive rather than prescriptive, it is simply irrelevant. This is indeed a more sophisticated criticism. Nevertheless, three standard answers are as follows. First, it could be argued that we need to know what certain terms mean in order to start a dialogue. My neighbour and I need to understand what we mean by “right” when we discuss his right to walk on my land. Another answer is that understanding the law is necessary to discuss what the law should be. We must first understand what a company is before trying to decide whether companies should have the right to express themselves politically. And a final, but perhaps more controversial, benefit is that understanding the legal system is an end in itself. Wittgenstein believed that the ultimate goal of philosophy was the enlightenment of the world; This may also apply to analytical jurisprudence. Generations of law students have found some value in works like Hohfeld`s. I suspect that this work has a lasting presence in our community, simply because it allows generations of lawyers to better understand the discipline they have chosen.

Dworkin provides a hypothetical justification for consent to his limited legal paternalism. In his view, there are a number of different situations in which completely rational adults would accept paternalistic restrictions on freedom. For example, Dworkin believes that a fully rational adult would accept paternalistic restrictions to protect him or her from “far-reaching, potentially dangerous and irreversible” decisions (G. Dworkin 1972, p. 80). Nevertheless, he argues that there are limits to legitimate paternalism: (1) the state must demonstrate that the conduct determined by the proposed restriction involves the kind of harm a rational person wants to avoid; (2) according to a fully rational person`s calculations, the potential harm outweighs the benefits of the relevant behaviour; and (3) the proposed restriction is the least restrictive alternative to harm protection. More importantly, Hart argues that Austin overlooks the existence of secondary meta-rules that deal with primary rules themselves and distinguish full-fledged legal systems from primitive legal systems: Thus, according to Hart, a P-phrase is legally valid in an S company if it meets the validity criteria contained in a binding recognition rule in S. As we have seen, the conventional argument implies that an S-recognition rule is binding only if there is a social agreement between civil servants to treat them as defining standards of official conduct. According to Hart, “[t]he rules of recognition, which establish the criteria for validity and their rules for modification and jurisprudence, must therefore be effectively accepted as common public standards for the official conduct of their public servants” (Hart, 1994, p. 113). We all – at least all jurists – share a conception of law and a legal conception, and we dispute different conceptions of this concept. Positivism defends a particular point of view, and I have tried to defend a competing point of view.

We disagree on what legal rights are, just as we philosophers who discuss justice do not agree on what justice is. I focus on the details of a particular legal system with which I am particularly familiar, not only to show that positivism provides a misrepresentation of that system, but to show that positivism gives a bad idea of the concept of legal claim (Dworkin 1977, 351-52). John Finnis` (1980) neo-naturalism is linked to Blackstone`s classical naturalism. Finnis believes that the naturalism of Thomas Aquinas and Blackstone should not be interpreted as a conceptual representation of the conditions of existence of law. According to Finnis (see also Bix, 1996), classical naturalists were not concerned with providing a conceptual representation of legal validity; rather, they were concerned with explaining the moral power of law: “The principles of natural law explain the binding force (in the fullest sense of `obligation`) of positive laws, even if these laws cannot be derived from these principles” (Finnis 1980, pp. 23-24). According to Finnis` view of the overlap theory, the essential function of law is to provide a justification for state coercion.