The Philosophy of Law

The Philosophy of Law


Law is a system of rules that a society or nation develops in order to create a framework for its members to live together peacefully. It can be used to regulate everything from criminal offenses to business contracts. It can also be used to enforce certain social norms and protect minorities against the majority, or it can be a tool of imperialism and colonialism. Different legal systems vary in the extent to which they serve these purposes. The concept of law has been the subject of many books and debates.

The main issues in the debate about the nature of law include its origin, whether it is naturally or artificially created; how it relates to other forms of authority and power, such as kings, priests, parliaments, judges, dictators, and gangsters; and how it should be interpreted and enforced. Other issues are the extent to which a legal system is democratic, and the relationship between law and religion.

In modern times, laws are made by legislative bodies, resulting in statutes; by the executive, through decrees and regulations; or through the courts, in common law jurisdictions. Private individuals may also make legally binding contracts and other arrangements that are enforceable by law.

Throughout history, law has been known as a coercive institution, enforcing its practical demands by means of threats and violence. This feature has given rise to a great deal of controversy, particularly in the philosophy of law. Early legal positivists, such as Bentham and Austin, maintained that the coercive aspect is what distinguishes law from other normative domains like morality or religious belief. More recent legal positivists, such as H.L.A. Hart and Joseph Raz, have tended to deny this, arguing that coercion is neither essential to law nor pivotal to its fulfillment of social functions.

The rule of law refers to the degree to which a state’s institutions, agencies and officials are accountable by publically promulgated, equally enforced, independently adjudicated and internationally recognized laws that are consistent with international human rights standards. It requires measures to ensure that a state and its officials respect the rights of individuals, minorities, and women. This approach is reflected in the 2012 declaration of the High-Level Meeting of the UN General Assembly on the Rule of Law at the National and International Levels. This Declaration is to be implemented by the Rule of Law Coordination and Resource Group at the UN. The Group will lead the coordination of the global follow-up to the Declaration and will provide support for the implementation of the recommendations. It will work in close partnership with the UN Development Programme and other partners to promote universally accepted principles, standards, and norms of good governance. The Rule of Law Coordination and Resource Group will also collaborate with the UN’s Human Rights Council, to ensure that all its Member States are held accountable for their commitments. The Group will report regularly to the HRC and all relevant inter-agency bodies on its work.