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Philosophy of Law - Torrente M-Z
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- Law and Morality: Explores the historical connection, overlaps, and divergences between law and morality. Legal positivism views law and morality as distinct, while moral relativism highlights a permanent tension as civilization evolves.
- Concepts of Law:
- Natural Law: Advocates for universal moral principles derived from nature, influencing early Greek and Roman thought (Aristotle, Cicero). St. Thomas Aquinas integrated natural law with Christian theology, distinguishing Eternal, Natural, Human, and Divine Law, emphasizing 'basic goods' and the principle "Lex injusta non est lex."
- Legal Positivism: Emerged with the Enlightenment (David Hume), emphasizing the separation of law from religion and morality. It focuses on law as man-made, verifiable through empirical evidence, and distinct from moral values.
- Key Positivist Thinkers:
- Bentham and Austin: Developed the "Law as a Command" theory, where law is seen as commands from a sovereign, backed by sanctions. Bentham advocated for codification to address common law's indeterminacy, while Austin emphasized the sovereign's unlimited power.
- Kelsen: Proposed a "Pure Theory of Law" (Normativism), asserting law as a secular, objective science focused purely on legal norms, devoid of moral or sociological impurities. He introduced the concept of the "Grundnorm" as the presupposed ultimate source of legal validity.
- Hart: Presented "Law as Social Rules," critiquing Kelsen and Austin. He recognized "penumbral cases" where judges have discretion and introduced the "Rule of Recognition" as a secondary rule determining a legal system's validity, accepted from an "internal point of view." He also discussed a "minimum content of natural law" necessary for human societies.
- Legal Realism: Predominantly American, it views law as essentially the judge's decision, emphasizing judicial discretion and the influence of social, economic, and political factors over strict legal rules. Key figures include Holmes and Frank, who highlighted law's indeterminacy and the "bad man" point of view.
- Debates and Criticisms:
- The Hart-Dworkin debate focused on "hard cases," with Hart allowing judicial discretion and Dworkin arguing for principles and standards beyond just rules (illustrated by Riggs v. Palmer).
- The "Rise and Fall of Natural Law" reflects a resurgence post-WWII due to atrocities committed under formally valid but immoral laws, leading to figures like Radbruch challenging legal positivism with concepts like "intolerability thesis."
- Critical Approaches (e.g., Marx, Foucault) scrutinize law's role in perpetuating social injustice, arguing that legal systems often serve powerful economic interests and are intertwined with power structures, rather than ensuring true equality.