Philosophical Legal Approaches

Why should we care about terminology? Who cares what is labeled “jurisprudence,” “philosophy of law,” or “legal theory”? Well, of course, there is a sense in which we should not care at all. What matters deeply is the substance of legal theory. On the other hand, these labels are important for another reason – because their use says something about the sociology of the academy. When people argue about what “jurisprudence” really is, the terminological dispute may reflect a conflict over “territory” and “authority.” These differences between Hart and Dworkin have led many legal philosophers, most recently Bix (1996), to suspect that they take no contradictory positions. Therefore, the question remains whether Dworkin`s work should be interpreted in such a way that it falls within the scope of analytical jurisprudence. Legal instrumentalism is one of the ideas strongly associated with American legal realism—the great movement of legal thought generally associated with Oliver Wendell Holmes, Jr.—as a kind of parent—and figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill-defined, but most instrumentalists would agree with the idea that legal rules must be interpreted in light of their objectives. If the application of the letter of the law undermines its purpose, the rule should be interpreted in such a way that it is not applicable. Similarly, if the spirit of the law were served by its application, judges would have to interpret the rule broadly. Some instrumentalists may go beyond that, arguing that judges should sometimes repeal laws that are bad policies or create rules set by judges when it would serve the purposes of good policy development. A positivist account of the existence and content of law, in either of the lines above, offers a theory of the validity of law in one of the two main meanings of the term (see Harris 1979: 107-111). Kelsen says that validity is the specific mode of existence of a standard. In this sense, a valid law is one that is systemically valid in the jurisdiction – it is part of the legal system and is identified as such because of its dependence on the social sources of the system.

The idea differs from that of validity as moral decency, that is, as a reasonable justification for compliance with the norm. For the legal positivist, it depends on the merits of the norm. One indication that these meanings differ is that one can know that a society has a legal system and know what its laws are without having the slightest idea if they are morally justified. For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified because not enough is known about its effects, social context, etc. In response, one path that positivists who want to be reductionists might take might be to claim that legal facts are really descriptive in nature, not really normative. In particular, these positivists might argue that the facts about legal obligations we have are merely descriptive facts about what the law says we should do – not normative facts about what we should really do (Shapiro 2011, 188; see also Hart 1994, 110). Legal moralism is the view that the law can legitimately be used to prohibit conduct contrary to society`s collective moral judgments, even if such behavior does not cause physical or psychological harm to others. According to this view, a person`s freedom can legitimately be restricted simply because it contradicts the collective morality of society; Legal moralism thus implies that the state is allowed to use its coercive power to enforce the collective morality of society. Natural jurists deny this idea and insist that a supposed norm can only become legally valid if it crosses a certain moral threshold. The content of positive law must correspond to certain fundamental rules of natural law, i.e. universal morality, in order to become law.

In other words, natural jurists argue that the moral content or value of norms, and not just their social origin, is also part of the legal conditions of validity. And again, it is possible to consider this position as a non-reductive conception of law, asserting that legal validity cannot be reduced to non-normative facts. See the entry on theories of natural law. However, a question that arises for this position concerns the extent to which it is a different methodology than those discussed above. If metanormative inquiry focuses on legal thought and discourse, we seem quite close to the picture of conceptual analysis of how jurisprudence should proceed. On the other hand, if the subject of the inquiry focuses on how legal entities or real estate fit into reality in general, then the opinion seems quite close to the naturalistic position that the subject of the case-law investigation is the phenomenon of law itself. Nevertheless, one of the particular attractions of the metanormative point of view is perhaps that it can show how the image of conceptual analysis and the naturalistic image capture different parts of the larger enterprise of the task at which the jurisprudence is concerned. Thus, instead of claiming to replace the other methods discussed above, the metanormative view, if reasonable, would remove a privileged starting point for jurisprudential investigation (such as the metaphysics of legal content, the semantic analysis of legal statements or the nature of legal obligations).