Philosophy of Law: Normative Foundations

by

John Oberdiek

• LAST REVIEWED: 26 June 2012
• LAST MODIFIED: 26 June 2012
• DOI: 10.1093/obo/9780195396577-0102

Introduction

This article on the philosophy of law focuses on contemporary discussions of law’s normative foundations. This branch of philosophy of law, also called normative legal theory, overlaps with topics in political philosophy and ethics, as well as with analytical general jurisprudence, and it is a lively and rich area of philosophical research. As this description suggests, normative philosophy of law covers a vast territory. A case could easily be made to include several dozen more topics under this heading, or indeed to devote separate overarching entries to many of the topics that might be subsumed under normative philosophy of law. The philosophy of criminal law, for example, comprises far more than theories of punishment. This is all to say that what follows is but a primer. The common focus of the following topics is the relationship between individuals and the state. Examining that relationship has long been a principal concern of normative philosophy of law. More specifically, normative philosophy of law in the dominant Anglophone tradition has long been devoted to exploring the state’s role in alternately protecting and constraining individual liberty through law. This article charts aspects of that alternating role, focusing on authority, the duty to obey the law, the rule of law, rights, legal moralism, and punishment.

General Overviews

There are a handful of very helpful encyclopedia-like volumes that include many entries on normative issues in philosophy of law, chief among them Coleman and Shapiro 2002, Golding and Edmundson 2005, and Patterson 2010, which is the most comprehensive. Each includes entries of broad compass on the theoretical underpinnings of doctrinal areas of law, such as criminal law and tort theory, as well as more specific topics, written by leading scholars in the field. In addition, Bix 2004 is a helpful dictionary of terms used in philosophy of law. Finally, The Stanford Encyclopedia of Philosophy is a superb general-purpose online resource.

• Bix, Brian. A Dictionary of Legal Theory. New York: Oxford University Press, 2004.

  A dictionary of terms widely used within philosophy of law, including normative legal theory, with expansive and helpful definitions of a wide range of terms and concepts.

• Coleman, Jules, and Scott Shapiro, eds. The Oxford Handbook of Jurisprudence and Philosophy of Law. New York: Oxford University Press, 2002.

  Includes state-of-the-art specially commissioned essays, authored by leadings figures, on a range of topics, including many within normative philosophy of law. Includes individual entries on most doctrinal areas of law, as well as on topics such as rights, authority, reasons, and adjudication.

• Golding, Martin P., and William A. Edmundson, eds. The Blackwell Guide to the Philosophy of Law and Legal Theory. Oxford: Blackwell, 2005.

  DOI: 10.1002/9780470690116

  Includes state-of-the-art specially commissioned essays, authored by leading figures, on a range of topics, including many within normative philosophy of law. In addition to entries on several doctrinal areas, the volume includes essays on the duty to obey the law, punishment, rights, responsibility, legislation, constitutionalism, legal reasoning, and privacy.

• Himma, Kenneth Einar. “Philosophy of Law.” In Internet Encyclopedia of Philosophy. Edited by James Fieser and Bradley Dowden, 2009.

  A fine overview of certain aspects of philosophy of law, including its normative foundations, such as the duty to obey the law, punishment, and legal moralism.

• Patterson, Dennis M., ed. A Companion to Philosophy of Law and Legal Theory. 2d ed. Chichester, UK, and Malden, MA: Wiley-Blackwell, 2010.

  DOI: 10.1002/9781444320114

  Includes state-of-the-art specially commissioned essays, authored by leadings figures, on a range of topics, including many within normative philosophy of law. Includes individual entries on most doctrinal areas of law, as well as an exhaustive set of entries on particular problems and questions within philosophy of law.

• The Stanford Encyclopedia of Philosophy. Edited by Edward N. Zalta.

  The most comprehensive and up-to-date repository of state-of-the-art articles on the widest range of philosophical topics, including many within normative philosophy of law.