The Philosophy of Law


Law is a system of rules established by the governing authority of a state or society to govern the conduct of its citizens. It may be either a set of written statutes, as in modern civil law jurisdictions, or a body of custom and policies recognized and enforced by judicial decision, as in traditional common law jurisdictions. Law is the subject of intense and often controversial philosophical inquiry, with significant implications for jurisprudence (the study of legal issues) as well as for ethics, political philosophy, history, sociology, economics and theology.

It is generally agreed that there are several functions that law fulfills in a society, such as providing security against crime and the possibility of settling disputes among citizens. The defining features of law include prohibitions on certain types of behavior and the sanctioning of the violator. It is also widely recognized that a society can survive without law in some circumstances, but most societies recognize that the existence of law is necessary to protect social order and human dignity.

Some theorists of law have argued that law is inherently normative and has a prescriptive character, which sets standards for acceptable behavior. However, these claims have a number of important limitations, including the fact that no empirical evidence supports them and that no method exists for testing whether the content of a normative statement is correct. This lack of a means of verification is particularly acute in the case of law, which differs from other normative domains like morality and religious precepts, as well as from empirical sciences and even social science theories.

Other theorists of law have questioned the normative character of law, maintaining that it is only meaningful in a context in which it has been applied. These critics point out that many other normative domains guide human conduct in ways similar to laws, and that the intelligibility of laws can depend on whether or not they are interpreted with reference to those other normative orders. This challenge is especially acute for reductive arguments like Austin’s, which maintain that the normative character of law simply consists in its subjects’ ability to predict that their deviation from laws will result in hostile reactions and their presumed desire to avoid sanctions.

A final source of controversy is the question of whether or not law imposes its demands by coercive means. Early theorists of law, such as Hans Kelsen, argued that the coercive aspect of laws is crucial to their ability to perform social functions. In contrast, 20th century legal realists, such as H.L.A. Hart and Joseph Raz, have argued that law’s coercive aspects are significantly less prominent than their predecessors believed. This argument has led to a vigorous debate over whether or not law is inherently coercive. This article provides a brief overview of some of the major theories of law.