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Thursday, August 16, 2007

What is the relationship between law and morality?

  • Natural law is the idea that there are unchangeable laws of nature which govern us, and that our institutions should try to match this natural law.
  • Analytic jurisprudence asks questions like, "What is law?" "What are the criteria for legal validity?" or "What is the relationship between law and morality?" and other such questions that legal philosophers may engage.
  • Normative jurisprudence asks what law ought to be. It overlaps with moral and political philosophy, and includes questions of whether one ought to obey the law, on what grounds law-breakers might properly be punished, the proper uses and limits of regulation, how judges ought to decide cases...
Main article: Natural law Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarised by the maxim an unjust law is not a true law, in which 'unjust' is defined as contrary to natural law. Natural law is closely associated with morality and, in historically influential versions, with the intentions of God. To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state. Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Natural law is sometimes identified with the slogan that "an unjust law is no law at all", but as John Finnis, the most important of modern natural lawyers has argued, this slogan is a poor guide to the classical Thomist position...
Main article: Analytic jurisprudence Analytic, or 'clarificatory' jurisprudence is using a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law's fusing of what law is and what it ought to be.[14] David Hume famously argued in A Treatise of Human Nature[1][15] that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.
The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?"; and, "What is the relationship between law and morality?" Legal positivism is the dominant theory, although there are a growing number of critics, who offer their own interpretations...
Normative jurisprudence Main article: Political philosophy In addition to the question, "What is law?", legal philosophy is also concerned with normative, or "evaluative" theories of law. What is the goal or purpose of law? What moral or political theories provide a foundation for the law? What is the proper function of law? What sorts of acts should be subject to punishment, and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? From Wikipedia, the free encyclopedia

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