Philosophy Legal Philosophy
by
Thom Brooks
  • LAST REVIEWED: 08 October 2015
  • LAST MODIFIED: 25 February 2014
  • DOI: 10.1093/obo/9780195396577-0176

Introduction

Legal philosophy is about the analytical and normative study of law and legal concepts. This includes questions of “what is law?” concerning the nature of law and fundamental questions about the law’s reach and authority. Legal philosophers critique the standard assumptions made by many legal practitioners to move beyond doctrinal legal analysis to reveal new insights and how potential problems might be resolved. This entry surveys the major approaches in legal philosophy, such as natural law theory, legal positivism, legal realism, the economic analysis of law, and alternative approaches. The entry then provides an overview of important issues in legal philosophy, such as adjudication, legal reasoning, and the philosophy of criminal law.

General Overviews

There are several general overviews on legal philosophy. Marmor 2011 provides a useful introduction to basic issues concerning the nature of law. Himma 2009 offers an excellent general introduction to legal philosophy and its main jurisprudential schools. A brief general introduction to select topics in legal philosophy is offered in Wacks 2006. Other recommended general overviews are comprehensive edited volumes that are each outstanding for the range and quality of contributions. The most comprehensive general overview on the subject is Coleman and Shapiro 2002. Patterson 1996 is similarly a collection of essays covering a wide number of topics in legal philosophy. A third recommended comprehensive collection is Golding and Edmundson 2005. A more scholarly overview covering several topics in legal philosophy is Brooks 2013.

Textbooks

There are many excellent textbooks on legal philosophy. The most widely known are Simmonds 2013, examining legal philosophy primarily through its leading figures, and Bix 2012, which is a more comprehensive and topical examination. Murphy 2007 is a recommended general introduction to the subject from a natural law perspective. Additional useful guides are Tebbit 2005 and Veitch, et al. 2012, which cover a number of jurisprudential approaches, issues, and themes.

Anthologies

There are a few excellent anthologies collecting many of the best essays on legal philosophy. The most comprehensive is Freeman 2008, containing a wide-ranging collection of selections from Antiquity to the modern day with informative introductions for each topic explored. A second useful anthology is Patterson 2003, which focuses on topics such as the relation of law and morality as well as legal indeterminacy. Kavanagh and Oberdiek 2008 is an excellent anthology bringing together classic and contemporary readings by themes. Another useful anthology is Penner, et al. 2002, which includes a wide range of materials and commentary.

  • Freeman, Michael D. A., ed. Lloyd’s Introduction to Jurisprudence. 8th ed. London: Sweet & Maxwell, 2008.

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    Most comprehensive anthology available, containing a wide-ranging collection of selections from Antiquity to the modern day including informative introductions for each topic examined.

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    • Kavanagh, Aileen, and John Oberdiek, eds. Arguing about Law. London: Routledge, 2008.

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      An excellent anthology bringing together classic and contemporary readings by themes.

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      • Patterson, Dennis, ed. Philosophy of Law and Legal Theory: An Anthology. Oxford: Blackwell, 2003.

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        A useful anthology that focuses on topics such as the relation of law and morality as well as legal indeterminacy.

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        • Penner, James, David Schiff, and Richard Nobles, eds. Introduction to Jurisprudence and Legal Theory. Oxford: Oxford University Press, 2002.

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          Includes wide range of materials and commentary on jurisprudence.

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          Natural Law

          Natural law is perhaps the oldest traditional approach to understanding the nature of law, and it covers a wide range of diverse perspectives. Natural lawyers argue broadly for the view that law and morality share some deep link with one another, although this is explained and defended in many different ways. An outstanding general introduction to natural law theory is Finnis 2011. Another informative general introduction is Himma 2005. George 1992 brings together a collection of essays by leading figures exploring natural law from several critical perspectives. Fuller 1969 presents an influential and distinctive account of law and its inner morality which features prominently in most discussions of natural law. Another famous and innovative account of natural law is defended in Finnis 1980. Simmonds 2007 offers an illuminating perspective of law as imperfect attempts to realize moral and political ideals through institutions. Brooks 2012 argues that natural law can be divided into two different camps: natural law externalists, who claim we should first determine our preferred position about morality and then apply it in our evaluation of law, versus natural law internalists, who claim that the moral standards we use to evaluate law spring from the law itself with reference to how leading natural lawyers contribute to each approach.

          • Brooks, Thom. “Natural Law Internalism.” In Hegel’s Philosophy of Right. Edited by T. Brooks, 167–179. Oxford: Blackwell, 2012.

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            Argues natural law can be divided into two camps: natural law externalists claim we use our preferred position about morality and then apply it in our evaluation of law, versus natural law internalism, which claims the moral standards we use to evaluate law spring from the law itself with reference to how leading natural lawyers contribute to each approach.

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            • Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon, 1980.

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              A famous and innovative account of natural law.

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              • Finnis, John. “Natural Law Theories.” In The Stanford Encyclopedia of Philosophy. Edited by Edward N. Zalta. 2011.

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                An outstanding general introduction to natural law theory.

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                • Fuller, Lon L. The Morality of Law. Rev. ed. New Haven, CT: Yale University Press, 1969.

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                  An influential and distinctive account of law and its inner morality which features prominently in most discussions of natural law.

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                  • George, Robert P., ed. Natural Law Theory: Contemporary Essays. Oxford: Oxford University Press, 1992.

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                    A collection of essays by leading figures exploring natural law from several critical perspectives.

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                    • Himma, Kenneth Einar. “Natural Law.” In Internet Encyclopedia of Philosophy. Edited by James Fieser and Bradley Dowden. 2005.

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                      An informative general introduction.

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                      • Simmonds, Nigel. Law as a Moral Idea. Oxford: Oxford University Press, 2007.

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                        An illuminating perspective of law as imperfect attempts to realize moral and political ideals through institutions.

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                        Legal Positivism

                        Legal positivism is the traditional opponent of natural law theory because positivists deny any necessary link between law and morality, a position called “the separability thesis.” This thesis is defended against a number of contemporary critics in Kramer 1999. Green 2003 provides a highly recommended critical survey of legal positivism especially well suited for anyone coming to this topic for the first time. Himma 2005 offers another useful general introduction. The classic modern defense of legal positivism is presented in Austin 1995. Hart 2012 is the most influential work of legal philosophy and often used as a general textbook to the subject, although it is also a significant contribution to legal thought in developing a compelling theory of legal positivism. One subgroup is exclusive legal positivism: they argue that it is necessarily the case that there is no connection between law and morality. Raz 1990 offers an influential defense of exclusive legal positivism. Inclusive legal positivism claims it is not necessarily the case that there is no connection between law and morality: a well-known exposition and defense is presented in Waluchow 1994. Coleman 2001 includes several illuminating essays on the exclusive-inclusive positivism debate. Highly recommended critical examination of legal positivism and the exclusive-inclusive positivism debate is found in Gardner 2012.

                        Legal Realism

                        Legal realism is a critical approach to law with distinctive roots in American legal realism and Scandinavian legal realism. Broadly speaking, legal realists claim that law is indeterminate. Legal realists welcomed advances in relating law to social science in an effort to improve predictions about trial outcomes, such as behavioral economics, social psychology, and sociology. An excellent collection of classic essays in legal realism by its founding figures can be found in Fisher, et al. 1993. One early defense of American legal realism is presented in Holmes 2004. A recommended general presentation of legal realism in the setting of lectures delivered to first-year law students is Llewellyn 2008. A more developed modern defense of legal realism is found in Frank 1936. Hohfeld 1919 offers a highly influential perspective on legal rights from a legal realist approach. Leiter 2007 defends a highly sophisticated and compelling revision of legal realism as a naturalized jurisprudence amenable to experimental philosophy that is essential reading in this area. Martin 1997 presents a useful survey of leading figures and texts in American and Scandinavian legal realism. Olivecrona 1971 offers an influential exposition of Scandinavian legal realism.

                        Economic Analysis of Law

                        The economic analysis of law is an approach that applies approaches and models from economics to the study of law, such as the use of cost-benefit analysis. Kornhauser 2011 offers a highly recommended general introduction to this approach and survey of its leading contributions. Butler 2011 provides an accessible introduction to law and economics. A recommended introduction to the philosophy of economics more generally is offered in Hausman 2008. The first major presentation and defense of the economic analysis of law is Posner 2011. A comprehensive critical examination of the economic analysis of law can be found in Shavell 2004. An illuminating set of essays exploring an analysis of law through behavioral economics is offered in Sunstein 2000, and Thaler and Sunstein 2008 offers a more general examination of the benefits of behavioral economics to our study of law and public policy.

                        Alternative Theories

                        There are a few other alternative theories about law that should be highlighted in this catch-all bibliographical section. The most important is feminism theories of law. Bartlett and Kennedy 1991 provides a useful anthology of key readings in feminist legal theory. MacKinnon 1987 is a modern classic feminist analysis of law that has become highly influential. Nussbaum 1999 is a groundbreaking work of political and legal philosophy exploring themes of sex and justice across a wide range of critical essays. Lacey 1998 develops a feminist analysis of law which claims that the structure and method of modern law are gendered, in a comprehensive contribution. A second important, alternative theory of law is legal pragmatism and its distinctive methodology: the best contemporary exposition can be found in Coleman 2001. A third important theory of law is the sociological approach to law. Cotterrell 1992 presents a useful introduction to the study of law from this approach. A final approach is critical legal studies, which have been decreasing in popularity in recent years among leading figures in debates about legal philosophy. A noteworthy contribution to critical legal studies is Unger 1986.

                        • Bartlett, Katharine T., and Rosanne Kennedy, eds. Feminist Legal Theory: Readings in Law and Gender. Boulder, CO: Westview, 1991.

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                          A useful anthology of key readings in feminist legal theory.

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                          • Coleman, Jules. The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory. Oxford: Oxford University Press, 2001.

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                            The best contemporary exposition of legal pragmatism.

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                            • Cotterrell, Roger. The Sociology of Law: An Introduction. 2d ed. London: Butterworths, 1992.

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                              A useful introduction to legal theory from the sociological approach to law.

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                              • Lacey, Nicola. Unspeakable Subjects: Feminist Essays in Legal and Social Theory. Oxford: Hart, 1998.

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                                A feminist analysis of law which claims that the structure and method of modern law are gendered, in a comprehensive contribution.

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                                • MacKinnon, Catharine. Feminism Unmodified. Cambridge, MA: Harvard University Press, 1987.

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                                  A modern classic feminist analysis of law that is highly influential.

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                                  • Nussbaum, Martha C. Sex and Social Justice. Oxford: Oxford University Press, 1999.

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                                    A groundbreaking work of political and legal philosophy exploring themes of sex and justice across a wide range of critical essays.

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                                    • Unger, Roberto Mangabeira. The Critical Legal Studies Movement. Cambridge, MA: Harvard University Press, 1986.

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                                      Noteworthy contribution to critical legal studies approach to law.

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                                      Adjudication and Legal Reasoning

                                      Adjudication and legal reasoning concern the study of the kinds of reasons most appropriate for law and how reasons might help inform legal outcomes. A highly recommended general introduction to legal reasoning is presented in Dickson 2010. Lamond 2006 offers a very useful general introduction to the use of precedent and analogy for legal reasoning. Golding 2001 presents a useful survey of key ideas and figures regarding legal reasoning. Duxbury 2008 defends an authoritative analysis of precedent for legal reasoning. A well-known and controversial view of adjudication as “constructive interpretivism” is presented in Dworkin 1986. Perhaps the most influential critical examination of legal reasoning is offered in Raz 2009, a highly recommended collection of recent essays.

                                      Philosophy of Criminal Law

                                      Legal philosophers examine law from a variety of perspectives considered above (e.g., Natural Law, Legal Positivism, and Legal Realism) and focus on specific areas of law. There has been an explosion of work in the area of the philosophy of criminal law in recent years. An excellent general introduction to the philosophy of criminal law is Duff 2010. Duff and Green 2011 offers a highly recommended collection of essays covering a comprehensive set of topics in the area. A modern classic contribution to the subject covering both the philosophy of criminal law and punishment is Hart 2008. Robinson 1997 provides a useful examination of law covering a wide range of topics. Husak 2007 contains an insightful critique of criminalization. An excellent anthology of readings on the theory and practice of punishment is von Hirsch and Ashworth 2000. Brooks 2012 provides the most comprehensive examination of theories about punishment available.

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