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Philosophy of Law

Philosophy of Law

Andrei Marmor
Copyright Date: 2011
Pages: 184
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  • Book Info
    Philosophy of Law
    Book Description:

    InPhilosophy of Law, Andrei Marmor provides a comprehensive analysis of contemporary debates about the fundamental nature of law--an issue that has been at the heart of legal philosophy for centuries. What the law is seems to be a matter of fact, but this fact has normative significance: it tells people what they ought to do. Is the normative content of a law entirely determined by the facts that make it a law? Are there some normative moral constraints on what the law can be? And can we fully characterize and define the law without assuming a moral conception about what the law ought to be? Finally, is the philosophy of law about describing what law is, or prescribing what it should be?

    Marmor argues that the myriad questions raised by the factual and normative features of law actually depend on the possibility of reduction--whether the legal domain can be explained in terms of something else, more foundational in nature. In addition to exploring the major issues in contemporary legal thought,Philosophy of Lawprovides a critical analysis of the people and ideas that have dominated the field in past centuries. It will be essential reading for anyone curious about the nature of law.

    eISBN: 978-1-4008-3870-7
    Subjects: Philosophy, Law

Table of Contents

  1. Front Matter
    (pp. [i]-[iv])
  2. Table of Contents
    (pp. [v]-[viii])
  3. Introduction
    (pp. 1-11)

    In the early summer of 2008, California highways were dotted with electronic signposts displaying the following message: “Hands Free Phone, July 1st, It’s The Law!” California drivers would have known exactly what the signposts referred to: Earlier that year, a new law was enacted by the California legislature that prohibits the use of cellular phones while driving unless using a hands-free device.¹ The signposts were not, of course, the law. They just reminded drivers, informed them, as it were, that “it’s the law!” Notice that this is an interesting kind of information, because it conveys two different types of content:...

  4. CHAPTER ONE A Pure Theory of Law?
    (pp. 12-34)

    In philosophy, as in other disciplines, we often try to explain one kind of things in terms of another. Generally, this is what a theoretical explanation amounts to. If we manage to provide an explanation of a certain aspect of the world that seems problematic, in terms of some other aspect that is less problematic, we will have certainly made some progress. Some types of explanation, in philosophy as well as in science, have the unique character we callreductive: If there is a clear demarcation of one type of discourse or class of statements, and we can provide a...

  5. CHAPTER TWO Social Rules at the Foundations of Law
    (pp. 35-59)

    Kelsen’s influence on H.L.A. Hart’s seminal work in legal philosophy,The Concept of Law, might not be readily apparent to a casual reader. A substantial part of the book is devoted to a detailed criticism of John Austin’s command theory of law, while Kelsen’s work is hardly mentioned. In this chapter I want to show that Hart’s theory of law takes Kelsen’s foundation to its reasonable conclusions, relying on some of Kelsen’s best insights but amending them in some crucial aspects. In particular, Kelsen’s failure to provide a nonreductive explanation of legal validity is a lesson that Hart carefully learned....

  6. CHAPTER THREE Authority, Conventions, and the Normativity of Law
    (pp. 60-83)

    In this chapter I would like to complete the outlines of a plausible version of legal positivism. The chapter is composed of two parts. In the first section I will discuss some of Joseph Raz’s ideas about the nature of practical authority and the implications of his views about the normativity of law. In the second section I will return to the rules of recognition and try to show that, though H.L.A. Hart is basically right about the idea that social rules are at the foundations of law, we need a theory of social conventions to articulate the requisite foundations....

  7. CHAPTER FOUR Is Law Determined by Morality?
    (pp. 84-108)

    The idea that the law consists of authoritative directives has been met with considerable skepticism over the last few decades. Many legal philosophers have argued that the overall content of the law is much more diverse than content that is communicated by legal authorities. In particular, it has been argued that moral considerations can sometimes determine what the law is. The content of the law, according to these views, is partly deduced by moral (and perhaps other types of evaluative) reasoning. So this is the challenge I want to consider in this chapter. We will take a closer look at...

  8. CHAPTER FIVE Is Legal Philosophy Normative?
    (pp. 109-135)

    H.L.A. Hart famously characterized his theory about the nature of law as “descriptive and morally neutral.”¹ Hart, like previous legal positivists such as John Austin and Hans Kelsen,² thought that a philosophical account of the nature of law should strive to avoid moralizing of any kind, and should aim at an explanation of the nature of law that is quite general in its application—one that explains what law, in general, is. Clearly there are at least two assumptions here. First, it is assumed that, in spite of variations between different legal systems across time and place, law is a...

  9. CHAPTER SIX The Language of Law
    (pp. 136-160)

    The important role that philosophy of language plays in articulating certain aspects of law has been well recognized by H.L.A. Hart. Throughout his writings, Hart made it very clear that he sees an understanding of language as central to his method of understanding law.¹ Some critics have misunderstood this methodological perspective, alleging that what Hart was after is an ordinary-language analysis of the meaning of the wordlaw. In fact, not only had he not been engaged in anything like a linguistic analysis oflaw, but Hart also explicitly denied that such an endeavor would be fruitful.² Philosophy of language...

  10. Bibliography
    (pp. 161-166)
  11. Index
    (pp. 167-172)