Philosophy of law

As the philosophy that discipline that reflects on other disciplines, it is likely that few have been rethought as is the law. This being the science of laws, careful reflection on them is important. On this subject we will stop on this occasion.

What is the philosophy of law

The philosophy of law is that branch of philosophy that focuses its attention on the reflection of the legal and the conditions that influence the establishment and maintenance of laws. As such, it is a discipline that seeks to rethink the most common legal concepts , such as justice and rights , and in turn, their meaning or purpose.

What do you study

Although it is a very ancient branch of philosophy , its objects of study are somewhat elusive when defining them within the same field. For some, their study focuses on law as both a phenomenon and a science. The latter implies the analysis of these and their ultimate purpose from a critical perspective . For others, the purpose of the philosophy of law lies in the reflection of the historical conditions in which some concepts of law develop, such as Law, State, Government, among others. And for some, its object of study is in the concept of justice and human rights .

features

• As such it is a branch of philosophy that addresses the problem of law from a philosophical point of view. Therefore, it uses the same resources and elements of philosophy.
• It questions the concepts of law from a more general perspective, more global than the rest of the legal sciences.
• Very unlike the jurist, the legal philosopher does not take legal concepts as something unquestioned or unanalyzed. Quite the contrary, concepts such as justice are constantly meditated and clarified by the specialist in this matter.
• It has both a critical function, as it relativizes concepts so far given in advance, as a guide . The latter means that it guides, prescribes, indicates which path jurists must follow when acting legally.

Source

Philosophy is a word whose roots are framed in the conjunction between phylum and sofia . These Greek words, in their translation, speak to us of something similar to: love of knowledge . While, on the other hand, Law is a word whose etymological roots are in the Latin directus, which refers us to the straight, the correct or the rigid. The result of their conjunction can be described as the love for the knowledge of what is right or correct.

History

Although as a practice it is something that goes back to the first philosophers of Greek antiquity (long before Socrates ), as an autonomous discipline, the philosophy of law was born from the hand of rationalist thinkers of the seventeenth century. Characters such as Grotius and Pulendorf become some of the most important names in this discipline, since they were among the first to call themselves legal philosophers.

What is the philosophy of law for?

It has a varied utility , but if what is sought is to synthesize, we could say that the philosopher of law finds its end in the reflection of the most common concepts of law. While the specialist starts from the concepts of law as given truths, the philosopher rethinks these notions and defines them, reformulates them and makes them evolve. Help the basics of law stay fertile .

Fundamentals

As a branch of philosophy, it finds several of its bases in historical and dialectical materialism . From dialectical materialism, part of the tools that this perspective provides, especially when it comes to putting opposing pairs in confrontation. From historical materialism , on the other hand, he takes the position of analyzing phenomena (for example, justice) in terms of the material conditions of a given historical moment.

Branches

Among some of the branches of the philosophy of law we have:

• Legal Epistemology .
• Legal Ontology .
• Legal Axiology .
• Existential Legal Philosophy.

Methods

Some of the methods that we can rescue from the philosophy of law are:

• Maieutics
• Inductive method
• Deductive method
• Genetic method
• Comparative method
• General method

Topics

In general, the legal philosopher is concerned with reflecting on issues of great legal interest such as: state, law, government, justice, property, rights, among other issues that are of concern to the jurist.

Questions of the philosophy of law

Like any branch of philosophy, law raises a series of questions that are essential. Some of these are:

• What is the object (legal concept) on which the philosophical reflection is centered?
• What or what will be the values ​​that will prevail in philosophical reflection?
• What is the relationship or link between the subject of law and the rule of law?

Authors

• Karl Marx.
• Montesquieu.
• Georg Wilhelm Friedrich Hegel.
• Hans Kelsen.
• Rudolf stammler

Books

• Criticism of Hegel’s philosophy of law
• Basic principles of the philosophy of law
• Pure theory of law
• Law spirit
• Treaty of philosophy of law

How it differs from the science of law

Although their objects of study are the same, it can be said that the contexts of study are different in terms of philosophy and the science of law. Whereas the philosophy of law places its study in the context of global life , law as science places it in the context of legal life.

Importance of the philosophy of law

Reflecting on the concepts that guide the jurist becomes important and necessary due to the changes of historical evolution. No historical context is the same as the previous one, each concept being elaborated in an era (for example, justice) prone to expiration when we go from one period to another. In a way, its importance lies in the fact that it allows updating legal ideas.

Examples

We can say that one of the most important examples of the role of the philosophy of law in the development of humanity has been the vindication of the rights of the LGBTI community . These, to a large extent, were based on the works of Judith Butler , who redefines and relativizes concepts such as gender. Rethinking these concepts has allowed them to acquire, today and in many countries, a new legal status.