Theories of Law

The law shapes politics, economics, history and society in various ways. It also serves to resolve disputes among individuals and groups of people. For example, if two people are fighting over the same piece of property, the courts can decide who owns it by interpreting the law. This prevents the parties from fighting and allows them to get along peacefully. Laws can also provide rules for how to conduct business and make sure that people are treated fairly.

Historically, philosophers have debated the nature of the law. Some have argued that the law is a moral institution that promotes moral values. Others have argued that the law is simply a coercive instrument that enforces practical demands on its subjects. This argument, known as the coercive thesis, was controversial even within the influential legal positivist tradition of the early 20th century. It was fiercely criticized by H.L.A. Hart, who called it a reductionist thesis about the normative aspect of law that reduces its normativity to nothing more than the subjects’ ability to predict hostile reactions and their presumed desire to avoid them.

Another theory of law focuses on how the content of the law is determined at a deeper level by more basic facts. This is an explanation of why laws change over time. It is also an explanation of why the law’s content is so varied across different countries and cultures. However, this explanation of the content of the law doesn’t do much deep theoretical work.

Many legal scholars believe that the law’s normative character depends on its ability to give its subjects reasons for complying with it. The resulting reasoning capacity makes the law useful for solving recurrent coordination problems, promoting desirable behavior, proclaiming symbolic expressions of communal values and resolving disputes over facts. These functions have little to do with the law’s coercive aspect and sanction-imposing functions.

Some legal theorists believe that a good theory of law must include a description of how a judge interprets the law. These theories of law assume that the legislature’s intention is important and that judges should attempt to effectuate it, despite any disagreement with the meaning of the law’s words. Other theorists believe that a judge should try to follow precedents, which is why legal decisions are sometimes similar in different places.

Other legal theorists, such as Hans Kelsen, have developed a pure theory of law. He argues that the legal system should be transparent and accessible to citizens so that they can understand it and trust it. He also believes that judges should follow a principle of internal consistency and apply the same interpretation to all similar cases. Moreover, he claims that new situations should not be used to create new principles or reinterpret old ones. These theories of law are criticized for reducing the law to simple descriptive or factual standards and failing to do more philosophical work. They may not adequately capture the idea of law in a way that all lawyers can agree on.