Controversies in the philosophy of law

The Nature of Mind: Oxford University Press, In particular, reductionist views take it that illuminating the nature of law is a matter of explaining what the law is, and how it operates, in terms of more foundational facts.

While the question of what conception of law it is most desirable that people adopt is surely a significant one, it is important to note that the prescriptive view of methodology in jurisprudence is not genuinely in competition with either the conceptual analysis view or the reductionist approach.

A natural, though ultimately unsuccessful, reply is that construing something as the best instance of its kind that it can be does not require taking that kind to be good. The above views about the proper target of first-order theories of law have different implications about this second question.

Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention.

One concern about the constructive interpretation view of methodology in jurisprudence is that it may not be in genuine competition with either the conceptual analysis or reductive views of methodology.

Thus, MacCormick seems to be offering a normative argument for a claim that has often been associated with positivism, namely a version of the Separation Thesis. Accordingly, even if legal theorists must make thin evaluative claims in order to be able to begin the project of developing a first-order legal theory, this does not mean that they must make thick evaluative claims in order to do so.

Later legal positivists have modified this view, maintaining that social rules, and not the facts about sovereignty, constitute the grounds of law. Leiter argues that our intuitions about law are too unreliable to be afforded much epistemic weight as others have argued with respect to intuitions in other areas of philosophy Leiter, ; cf.

Current Controversies in Philosophy of Mind

As a result, at least on their face, both the conceptual analysis and reductive views seem to allow that there can be first-order theories of law that are purely descriptive. The complex question of whether there is such a general obligation to obey the law, and whether it depends on certain features of the relevant legal system, is extensively discussed in the literature on political obligation.

Articles on this list should be checked from time to time to monitor developments in the presentation of the issues. What kinds of things can claim legitimate authority? This involves at least two separate claims: Unlike chess or soccer, however, the law may well be a kind of game that people have an obligation to play, as it were.

There are at least two such features necessary for authority-capacity: Thus, the simplest thick evaluative claims have the form: The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then she tests this account against her intuitions about that concept.

Accordingly, at least in some spheres of conduct, the question of what the law is ought to be held distinct from the question of what morality requires.

Most contemporary legal positivists share the view that there are rules of recognition, namely, social rules or conventions which determine certain facts or events that provide the ways for the creation, modification, and annulment of legal standards.

In other words, natural lawyers maintain that the moral content or merit of norms, and not just their social origins, also form part of the conditions of legal validity. However, it is also essential to law that it must be held to claim legitimate authority.


That is, some argument would be needed to explain why we should think that understanding law requires giving a constructive interpretation of it. In the more difficult cases which tend to be adjudicated in the appellate courts, legal rules, by themselves, are radically indeterminate as to the outcome of the cases.

More on that in sub-section 2.

The Nature of Law

The assumption is that the intuitions one is disposed to have in virtue of possessing the concept of law will be fertile enough to constitute a particular substantive conception of what the law is and how it functions.

But many legal philosophers doubt that there are legal principles of the kind Dworkin envisaged. For more on this, see, e.

Though, as seen earlier, it is not clear that all positivists must be committed to a strong version of this thesis. The conventional rules constituting the game of chess, for example, are not there to solve a coordination problem between potential players.

This, in turn, is due to the fact that one might understand concepts themselves, and our intuitions about them, in two different ways.

Current Controversies in Philosophy

Recent challenges to general jurisprudence, and particularly to legal positivism, have taken an interesting methodological turn. However, this understanding of concept possession has drawbacks. The argument from the internal point of view A second natural argument in favor of seeing legal theory as inherently evaluative in the relevant sense relies on the idea that any adequate theory of law must take account of the internal point of view that legal practitioners tend to adopt towards the law.

Accordingly, accounts of the concept of law, or reductive theories of law, are not necessarily inconsistent with prescriptive accounts of what legal theory it would be most desirable from the moral point of view to adopt. If the job of a first-order theory of law is to identify the concept of law it would be most desirable for us to employ, then there is a sense in which the resulting theory of law would of course be evaluative.

But it does seem to require at least saying that some construals of legal practice are morally better than other construals would be.In the theory of law, a controversy differs from a legal case; while legal cases include all suits, criminal as well as civil, a controversy is a purely civil proceeding.

For example, the Case or Controversy Clause of Article Three of the United States Constitution (Section 2, Clause 1) states that "the judicial Power shall extend to Controversies to which the. Discussions about those controversies should be limited to the relevant Talk pages.

For more information, see Wikipedia: Saudi Arabia – use of Sharia law and human rights record. Laura Schlessinger; School violence; Seamus incident; Carlos Latuff – controversial cartoonist.

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Product details. File Size: KB. Current Controversies in Philosophy provides short, accessible volumes that cast a spotlight on ongoing central philosophical conversations. In each book, pairs of experts debate four or five key issues of contemporary concern, setting the stage for students, teachers and researchers to join the discussion.

This general question about the nature of law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis.

Running Head: Controversies Controversies in the Philosophy of Law LS Unit 5 Kaplan University November 16, The proper aims of law have been debated and tested through legislation and case law from the early start of America.

Controversies in the philosophy of law
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