Philosophy of Law

Have you ever wondered what the basic philosphies underpinning our local, regional, national and international legal systems are? It is a much debated question in academia. At the heart of all law is ultimately an ethical theory. Although there are many theories of law according to the philosophies of feminism, marxism, postmodernism, liberalism and other schools of thought at its core it appears that law may either be sourced from a positivist perspective or a natural law origin. So what are these two great theoretical schools of thought concerned with and why are they important?

Natural law

Natural law is based on a foundationalist world view. Under this understanding of law, truth is absolute and well live in an objective and knowable reality where there are certain ethical truths which are self-evident. The fundamental values of natural law may include that of human dignity and freedom, or perhaps equality. Early natural law theorists such as John Locke viewed the right to property as an essential element of natural law. The natural law theory of Locke was based on the view that God had endowed human beings with certain inalienable rights. His view can be seen to underlie the statement expressed in the US Consitution 'we hold these truths to be self evident - that all men are created equal and are endowed with certain rights and that among these rights are the rights to life, liberty and the pursuit of happiness'.

Positivism

Positivism is a jurisprudential theory which emanates from a fundamentally different philosophy. Positivists regard the law as an expression of the authority of a sovereign and under their theory, it is not so much the issue as to if the law has an ethical basis or not, it is simply the fact that the law exists as an instrument of order and control in society. This order is not necessarily just per se, but it is necessary for the function of a stable and harmonious society and the avoidance of anarchy.

So what impact can these theories have on the say to day operation of the legal system? Well, the answer is, probably not much. The only thing we can really say is that the actors within the legal system operate on certain assumptions and ideas which these theories unpack and explain. However, there is usually little comment from judges or lawyers on exactly what origins of knowledge and the philosophy of law is.