Law is a powerful tool to maintain peace and the status quo within a society. It can also protect individual rights, protect minorities from majorities, and foster social justice and orderly social change. There are different types of legal systems and some serve these purposes better than others. For example, authoritarian governments often use the law as a tool to repress political opponents and minorities. Other countries have used law to impose peace on their neighbors, such as the British and Dutch empires.
Conceptual jurisprudence in the law seeks to provide explanations and theories of law. Philosophers such as John Austin and Thomas Aquinas have offered varying types of theoretical approaches to law. They have argued that law definitions should be conceptual tools and not semantic analyses. Ronald Dworkin has attacked this approach, however, arguing that it neglects the subject matter of jurisprudence. His concerns may have been more with the nonsemantic sense of legal propositions.
The term jurisprudence is also used to describe the science of law. According to Austin, jurisprudence is the body of principles that are recognised by and enforced by regular and public tribunals. It is also related to other fields of the social sciences. Austin further expanded the term jurisprudence and classified it into general and particular jurisprudence. He noted that jurisprudence must include both the study of the law and its practice and the study of principles that are universal and common to all nations.
Rule of law
Rule of Law is an ideal that underlies liberal political morality. This ideal consists of a set of values, including democracy, human rights, social justice, and economic freedom. Its plurality suggests that it is not simply a single ideal, but rather a set of principles that should be applied to any political system. Moreover, some legal philosophers insist that the Rule of Law is distinct from democracy. Raz 1977, for instance, places the focus of Rule of Law on the formal and procedural aspects of governmental institutions.
The concept of Rule of Law can be traced back to ancient Greece, but has become much more widely discussed in the last twenty-five years. For example, former U.S. Supreme Court Justice Anthony M. Kennedy has said that he does not recall hearing the term “rule of law” in law school when he was in law school in the 1950s. It may be that it was not then common to discuss rule of law in law school. However, many liberals have embraced the concept.
Social fact theory
The study of social conditions and behaviour is an important aspect of sociology. Sociologists like Durkheim have argued that social facts emerge from collectives and are not a product of individual action. These facts have a reality above the individual, just as human life is more than its cells. In their view, the laws and regulations are derived from the laws and behaviours of the society, not from the individual.
The social fact theory is an alternative perspective to the separation between law and morality. While denying the connection between law and morality, this theory considers the impact of social structures on individual behavior. The social facts of a society may be enforced by laws, and may be associated with sanctions and disapproval. Often, an individual does not realize that he or she is violating a social fact. The social fact theory of law provides a powerful theoretical framework to understand social structures and how they affect individual behavior.
The Conventionality Thesis argues that legal validity can be explained in terms of socially authoritative criteria. According to Hart, these criteria are contained in a rule of recognition, which sets out rules for creating, amending, and adjudicating law. Because members of a group regard these rules as standards, they are considered authoritative.
In contrast, Dworkin rejects this view, arguing that the law cannot be based on conventional arrangements, and that the law is beyond conventions. Clearly, this theoretical disagreement shows the problem with the conventionality theory of law.
The separability theory in law is a legal positivist theory that asserts that law and morality are conceptually distinct. It reacts against the tradition of natural law theory, which holds that law possesses a moral character by nature. The separability theory argues that law and morality are distinct because they are normative systems containing statements about how people should behave.
This theory suggests that there are no moral constraints that restrict the validity of law. Instead, they function as efficacy conditions. However, this approach to legality does not account for the fact that many legal theories assume that there are moral constraints that prevent law from being valid.