. The study of problems concerning prescriptive laws (as against laws of nature, often called descriptive, which are studied by philosophy of science. On ‘natural law’, see LAWS).)
There are widely different views about what a law is. Is it a command of the sovereign? Or a prediction of what judges will decide? Or a prediction that certain actions will be followed by sanctions? Or a statement of an intention to impose sanctions? Or something else? Are there formal conditions (as against conditions affecting its content) that a law must satisfy to count as a law at all, like being initiated in certain ways by a body with special authority, or not being inconsistent with itself or with other laws in the same system? Are there restrictions on content, e.g. is an alleged law not a law at all if it prescribes what is impossible, or violates divine, natural, or moral law? And are these kinds of law, if they exist, all law in the same sense? Also is a law still a law if there is either no prescribed sanction or no power of enforcement?
Some of these questions raise issues of justification. To justify a law or to justify a legal system may be either to show that it really is one, or to show that it is good, fair, proper, impartial, etc. How closely these tasks are related is disputable. Other things that need justifying are judgments within a legal system, e.g. those of lawyers or of judges, and the duty of obedience. Closely related are questions about the justification of punishment, be it of punishment in general, of particular penalties for particular types of case, or of individual cases. The notions of intention and strict liability (i.e. liability irrespective of intention) are relevant here.
Certain problems concern the different branches of law (constitutional, civil, commercial, criminal) and how they relate to each other and to equity. Constitutional law in particular raises questions about how it can change. In other branches the role of judges in making law is relevant. Questions of sovereignty and sanctions lead to problems about the possibility and nature of international law.
H.L.A.Hart, The Concept of Law, Oxford UP, 1961. (Full discussion of many problems.)
H.L.A.Hart, The Morality of the Criminal Law, Oxford UP, 1965. (Hart’s side in famous debate with Lord Devlin, Cf. P.Devlin, The Enforcement of Morals, 1959, reprinted with other relevant items in book of same title, 1965.)
T.Honderich, Punishment: the Supposed Justifications, Hutchinson, 1969.
R.S.Summers (ed.), Essays in Legal Philosophy, Blackwell, 1968, More Essays in Legal Philosophy, Blackwell, 1971. (First volume covers questions of analysis and justification. Second discusses historical figures. See Summers’s introductions for survey of issues.)
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