Citation Information
Article Title: Philosophy of law
Website Name: Encyclopaedia Britannica
Publisher: Encyclopaedia Britannica, Inc.
Date Published: 15 June 2017
URL: https://www.britannica.com/topic/philosophy-of-law
Access Date: August 21, 2019
Additional Reading General
A reliable and accessible general history of the philosophy of law up to about 1980 is J.M. Kelly, A Short History of Western Legal Theory (1992). A very good and broader intellectual history is Donald R. Kelley, The Human Measure: Social Thought in the Western Legal Tradition (1990). A more-detailed history, up to about 1600, can be found in the essays collected in Fred D. Miller, Jr. (ed.), A History of Philosophy of Law from the Ancient Greeks to the Scholastics (2007). The most philosophically sophisticated (yet accessible) historical accounts of the philosophy of law from 1600 to the early 21st century are Gerald J. Postema: Bentham and the Common Law Tradition (1986), and Legal Philosophy in the Twentieth Century: The Common Law World (2011). A clear, general, but opinionated introduction to the philosophical issues is Mark C. Murphy, Philosophy of Law (2007), in which the author defends a natural-law view. Ancient Greece
Many of the relevant texts on law by Greek poets, tragedians, and historians are collected in Michael Gagarin and Paul Woodruff (eds.), Early Greek Political Thought from Homer to the Sophists (1995). Plato’s philosophy of law is expounded primarily in his dialogues Crito, Statesman, and Republic, all of which appear in John M. Cooper (ed.), Plato: Complete Works (1997). Aristotle’s writings on law encompass portions of his Nicomachean Ethics, Politics, and Rhetoric, all of which appear in Jonathan Barnes (ed.), The Complete Works of Aristotle: The Revised Oxford Translation, 2 vol. (1984). Rome and the Middle Ages
Cicero’s major works in the philosophy of law are presented in On the Commonwealth; and, On the Laws, ed. and trans. by James E.G. Zetzel (1999); and On Duties, ed. and trans. by M.T. Griffin and E.M. Atkins (1991). Aquinas’s theory is presented in what is sometimes called his “Treatise on Law,” which consists of Questions 90–108 of the Prima Secundae of his immense work Summa Theologica. The relevant texts are collected in Thomas Aquinas, Political Writings, ed. and trans. by R.W. Dyson (2002). A comprehensive general introduction to Aquinas’s thought, with particular attention to his legal and political philosophy, is John Finnis, Aquinas: Moral, Political, and Legal Theory (1998). The early modern period
The major works in the command theory of law are presented in Francisco Suárez, Selections from Three Works of Francisco Suárez, S.J., 2 vol., trans. by Gwladys L. Williams et al. (1944, reprinted 1964); Hugo Grotius, Prolegomena to the Law of War and Peace (1625), trans. by Francis W. Kelsey (1957); and Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law (1673), ed. by James Tully and trans. by Michael Silverthorne (1991). Many of the passages on the nature of law from these works are usefully discussed in chapters 4, 5, and 7 of J.B. Schneewind, The Invention of Autonomy (1998).
The classic texts of common-law theory are Matthew Hale, The History of the Common Law of England (1713), ed. by Charles M. Gray (1971); and William Blackstone, Commentaries on the Law of England (1767), 2 vol. ed. by William Carey Jones (1916). Edward Coke, Institutes of the Lawes of England (1624–44), contains scattered theoretical remarks rather than an elegant presentation of his views; many of the relevant texts are collected in The Selected Writings and Speeches of Sir Edward Coke, ed. by Steve Sheppard (2003). A systematic and accessible discussion of those common-law theorists is the work by Gerald J. Postema cited in the first section above. Thomas Hobbes’s views on law are set out primarily in Chapters 24–26 of Leviathan (1651), ed. by Richard Tuck, rev. ed (1996); his criticisms of common-law theory are developed in A Dialogue Between a Philosopher and a Student of the Common Laws of England (1681), ed. by Joseph Cropsey (1971). Two useful collections of essays on Hobbes’s philosophy of law are Claire Oakes Finkelstein (ed.), Hobbes on Law (2005); and David Dyzenhaus and Thomas Poole (eds.), Hobbes and the Law (2012). The 19th century
Jeremy Bentham’s criticisms of common-law theory, particularly Blackstone’s version, can be found in Jeremy Bentham: A Fragment on Government, ed. by J.H. Burns and H.L.A. Hart (1988). His own philosophy of law is initially developed there but is most fully expressed in a work not published until the 20th century, the authoritative edition of which is Of the Limits of the Penal Branch of Jurisprudence, ed. by Philip Schofield (2010). John Austin’s most-important works are The Province of Jurisprudence Determined (1832), ed. by Wilfrid E. Rumble (1995); and Lectures on Jurisprudence: or, The Philosophy of Positive Law, 2 vol. (1875), 5th ed., rev. and ed. by Robert Campbell (2005).
There are now several studies of Bentham’s writings on law. Of these, two useful ones are Ross Harrison, Bentham (1983); and L.J. Hume, Bentham and Bureaucracy (2004, originally published 1981). Austin’s views are discussed in Wilfrid E. Rumble, The Thought of John Austin: Jurisprudence, Colonial Reform, and the British Constitution (1985); and famously criticized in chapters 2–4 of H.L.A. Hart, The Concept of Law, 3rd ed. (2012, originaly published 1961). Legal positivism
The two classic legal-positivist texts are Hans Kelsen, Pure Theory of Law, trans. from 2nd rev. and enl. German ed. by Max Knight (1967); and the work by H.L.A. Hart cited in the preceding section. Hart also developed his views in his Essays in Jurisprudence and Philosophy (1983). His jurisprudence is helpfully discussed in Neil MacCormick, H.L.A. Hart, 2nd ed. (2008, originally published 1981). Criticisms of Hart appear in chapters 2 and 3 of Ronald Dworkin, Taking Rights Seriously (1977); to which Hart responded in a postcript to the 2nd and 3rd editions of The Concept of Law. Dworkin’s view of law as “constructive interpretation” is anticipated in chapter 4 of Taking Rights Seriously and developed in Ronald Dworkin, Law’s Empire (1986), especially in chapters 6 and 7. John Finnis’s critique of Hart appears in chapter 1 of his Natural Law and Natural Rights, 2nd ed. (2011, orginally published 1979). Joseph Raz’s development of legal positivism is well represented in The Authority of Law: Essays on Law and Morality, 2nd ed. (2009, originally published 1979), and in chapters 2–4 of The Morality of Freedom (1986). Legal realism
The seminal text of Scandinavian legal realism is Alf Ross, On Law and Justice (1958, reprinted 1974). The seminal texts of American realism are Karl Llewellyn,