Philosophical Foundations - Exploring Different Philosophical Schools of Thought in Law

What is a law? What confers authority upon them? Can a law that permits capital punishment for littering exist? More importantly, what makes law, well, law? These are the questions that legal philosophers have spent centuries, if not millennia, attempting to answer. In this article, I will endeavour to provide a concise summary of the three major schools of thought regarding these questions. There are two main purposes of answering those questions: one is to distinguish valid laws from non-law norms that are not legally recognised, such as dinner etiquette. Second is to explore the relationship between law and morality.  

Naturalism 

Although outdated, the Natural Law theory provides a framework for later theories to develop and ultimately to rebut. Naturalists posit that morality is woven into the very fabric of law, and they cannot be separated. In other words, the concept of law cannot be fully articulated without reference to moral notions. That brings us to another question: what are the moral notions? 

St. Thomas Aquinas and William Blackstone postulate the strongest form of Naturalism. They believe the moral notion they rely on is largely, if not entirely, religious, namely Christianity. Therefore, any ‘law’ that conflicts with the moral notion (in this case, ones emanating from Christianity) is invalid and hence is not recognised as a law.   

Legal Positivism 

Legal Positivism is another major school of thought. Proponents of this school are the opposites of Natural Law, in that they believe law and morality are separated. There are two main theories that explain where the authority of law stems from.  

Social Fact Thesis 

This thesis suggests that legal validity is ultimately a function of certain kinds of social facts. John Austin, a prominent figure in this field, argues that the social fact should be a sovereign that is obeyed by everyone and has the power of sanction for noncompliance. The social fact is to grant the law its authority, and in this case, the law made by this sovereign is valid.  

Conventionality thesis 

However, the previous thesis appears to be circular in nature as it did not explain how the law is granted authority. This thesis builds on the former in that it recognises that social facts giving rise to legal validity are authoritative due to some kind of social convention. H.L.A. Hart has contributed substantively to this field. One type of convention he suggests is the rule of recognition. In the context of the UK, a bill (a provisional law) must go through certain procedures to become a law recognised and enforced by the government. And that procedure is socially recognised as valid, and any law that did not follow this procedure cannot be a law (save for exceptional circumstances).  

Legal Realism 

Legal Realism began to gain relevance in the 1920s. It is a rather novel theory that challenges the notion that the law is made up of pure logic and rules, deviating from the empirical nature of Positivism and Naturalism, and begins to consider wider societal factors. It recognises judicial lawmaking as a source of law. While this is not the only source of law in the UK, Realists believe judges often make decisions not based on the black letter rules, but on political and moral intuitions developed through life experiences. 

Concluding Thoughts 

So could a law permitting capital punishment for littering exist? The Naturalist would be strongly opposed to any killings, since it is against most moral standards. On the other hand, the Positivists of the most extreme would accept the existence of such a law, if enacted by a recognised sovereign and following the correct procedures. The Legal Realist, however, would focus on how such a law would actually function within society, on whether it would be accepted, enforced, or perhaps resisted by the judiciary and broader community.  

This is, of course, merely an introduction, and the field of jurisprudence (the philosophy of law) is more sophisticated than what was covered in this article. I hope this has not been too boring and convoluted, as most philosophical texts might be, and it has been insightful to read. Thank you for reading.