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Philosophers of law ask "what is law, and what should it be?"
Jurisprudence is the philosophy and theory of law. It is
concerned primarily with what the law is and what it ought to be. That
includes questions of how persons and social relations are understood in
legal terms, and of the values in and of law. Work that is counted as
jurisprudence is mostly philosophical, but it includes work that also
belongs to other disciplines, such as sociology, history, politics and
economics.
Modern jurisprudence began in the 18th century and was based on the first principles of natural law, civil law, and the law of nations.
General jurisprudence can be divided into categories both by the type
of question scholars seek to answer and by the theories of
jurisprudence, or schools of thought, regarding how those questions are
best answered.
Contemporary philosophy of law, which deals with general
jurisprudence, addresses problems internal to law and legal systems and
problems of law as a social institution that relates to the larger
political and social context in which it exists.
Ancient natural law is the idea that there are rational objective
limits to the power of legislative rulers. The foundations of law are
accessible through reason, and it is from these laws of nature that
human laws gain whatever force they have. Analytic jurisprudence
rejects natural law's fusing of what law is and what it ought to be. It
espouses the use of a neutral point of view and descriptive language
when referring to aspects of legal systems. It encompasses such theories of jurisprudence as legal positivism, holds that there is no necessary connection between law and morality and that the force of law comes from basic social facts;
and "legal realism", which argues that the real-world practice of law
determines what law is, the law having the force that it does because of
what legislators, lawyers, and judges do with it. Unlike experimental jurisprudence, which seeks to investigate the content of folk legal concepts using the methods of social science, the traditional method of both natural law and analytic jurisprudence is philosophical analysis. Normative jurisprudence
is concerned with "evaluative" theories of law. It deals with what the
goal or purpose of law is, or what moral or political theories provide a
foundation for the law. It not only addresses the question "What is
law?", but also tries to determine what the proper function of law
should be, or what sorts of acts should be subject to legal sanctions,
and what sorts of punishment should be permitted.
Etymology
The English word is derived from the Latin, iurisprudentia. Iuris is the genitive form of ius meaning law, and prudentia
meaning prudence (also: discretion, foresight, forethought,
circumspection). It refers to the exercise of good judgment, common
sense, and caution, especially in the conduct of practical matters. The
word first appeared in written English in 1628, at a time when the word prudence meant knowledge of, or skill in, a matter. It may have entered English via the French jurisprudence, which appeared earlier.
History
Ancient Indian jurisprudence is mentioned in various Dharmaśāstra texts, starting with the Dharmasutra of Bhodhayana. In Ancient China, the Daoists, Confucians, and Legalists all had competing theories of jurisprudence. Jurisprudence in Ancient Rome had its origins with the periti—experts in the jus mos maiorum (traditional law), a body of oral laws
and customs. Praetors established a working body of laws by judging
whether or not singular cases were capable of being prosecuted either by
the edicta, the annual pronunciation of prosecutable offences, or in
extraordinary situations, additions made to the edicta. An iudex would
then prescribe a remedy according to the facts of the case.
The sentences of the iudex were supposed to be simple
interpretations of the traditional customs, but—apart from considering
what traditional customs applied in each case—soon developed a more
equitable interpretation, coherently adapting the law to newer social
exigencies. The law was then adjusted with evolving institutiones (legal concepts), while remaining in the traditional mode. Praetors were replaced in the 3rd century BC by a laical body of prudentes. Admission to this body was conditional upon proof of competence or experience. Under the Roman Empire,
schools of law were created, and practice of the law became more
academic. From the early Roman Empire to the 3rd century, a relevant
body of literature was produced by groups of scholars, including the
Proculians and Sabinians. The scientific nature of the studies was unprecedented in ancient times. After the 3rd century, juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it is from this cultural movement that Justinian's Corpus Juris Civilis was born.
Natural law
In
its general sense, natural law theory may be compared to both
state-of-nature law and general law understood on the basis of being
analogous to the laws of physical science. Natural law is often
contrasted to positive law which asserts law as the product of human
activity and human volition. Another approach to natural-law
jurisprudence generally asserts that human law must be in response to
compelling reasons for action. There are two readings of the natural-law
jurisprudential stance.
- The strong natural law thesis holds that if a human law
fails to be in response to compelling reasons, then it is not properly a
"law" at all. This is captured, imperfectly, in the famous maxim: lex iniusta non est lex (an unjust law is no law at all).
- The weak natural law thesis holds that if a human law fails
to be in response to compelling reasons, then it can still be called a
"law", but it must be recognised as a defective law.
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 on. John Finnis, one of the most important of modern natural lawyers, has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical Thomist position.
Aristotle
Aristotle is often said to be the father of natural law. Like his philosophical forefathers Socrates and Plato, Aristotle posited the existence of natural justice or natural right (dikaion physikon, δικαίον φυσικόν, Latin ius naturale). His association with natural law is largely due to how he was interpreted by Thomas Aquinas. This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of the Nicomachean Ethics (Book IV of the Eudemian Ethics). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally.
Aristotle's theory of justice is bound up in his idea of the golden mean.
Indeed, his treatment of what he calls "political justice" derives from
his discussion of "the just" as a moral virtue derived as the mean
between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics
and begins by asking what sort of mean a just act is. He argues that
the term "justice" actually refers to two different but related ideas:
general justice and particular justice.
When a person's actions toward others are completely virtuous in all
matters, Aristotle calls them "just" in the sense of "general justice";
as such, this idea of justice is more or less coextensive with virtue.
"Particular" or "partial justice", by contrast, is the part of "general
justice" or the individual virtue that is concerned with treating
others equitably.
Aristotle moves from this unqualified discussion of justice to a
qualified view of political justice, by which he means something close
to the subject of modern jurisprudence. Of political justice, Aristotle
argues that it is partly derived from nature and partly a matter of
convention.
This can be taken as a statement that is similar to the views of modern
natural law theorists. But it must also be remembered that Aristotle is
describing a view of morality, not a system of law, and therefore his
remarks as to nature are about the grounding of the morality enacted as
law, not the laws themselves.
The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric,
where Aristotle notes that, aside from the "particular" laws that each
people has set up for itself, there is a "common" law that is according
to nature.
The context of this remark, however, suggests only that Aristotle
thought that it could be rhetorically advantageous to appeal to such a
law, especially when the "particular" law of one's own city was adverse
to the case being made, not that there actually was such a law. Aristotle, moreover, considered certain candidates for a universally valid, natural law to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed.
Thomas Aquinas
Thomas Aquinas was the most influential Western medieval legal scholar.
Thomas Aquinas is the foremost classical proponent of natural theology, and the father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church. The work for which he is best known is the Summa Theologiae. One of the thirty-five Doctors of the Church, he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning have been named after him.
Aquinas distinguished four kinds of law: eternal, natural, divine, and human:
- Eternal law refers to divine reason, known only to God. It is
God's plan for the universe. Man needs this plan, for without it he
would totally lack direction.
- Natural law is the "participation" in the eternal law by rational human creatures, and is discovered by reason
- Divine law is revealed in the scriptures and is God's positive law for mankind
- Human law is supported by reason and enacted for the common good.
Natural law is based on "first principles":
... this is the first precept of the law, that good is
to be done and promoted, and evil is to be avoided. All other precepts
of the natural law are based on this ...
The desires to live and to procreate are counted by Aquinas among
those basic (natural) human values on which all other human values are
based.
School of Salamanca
Francisco de Vitoria was perhaps the first to develop a theory of ius gentium
(the rights of peoples), and thus is an important figure in the
transition to modernity. He extrapolated his ideas of legitimate
sovereign power to international affairs, concluding that such affairs
ought to be determined by forms respecting of the rights of all and that
the common good of the world should take precedence before the good of
any single state. This meant that relations between states ought to pass
from being justified by force to being justified by law and justice.
Some scholars have upset the standard account of the origins of
International law, which emphasises the seminal text De iure belli ac pacis by Hugo Grotius, and argued for Vitoria and, later, Suárez's importance as forerunners and, potentially, founders of the field.
Others, such as Koskenniemi, have argued that none of these humanist
and scholastic thinkers can be understood to have founded international
law in the modern sense, instead placing its origins in the post-1870
period.
Francisco Suárez, regarded as among the greatest scholastics after Aquinas, subdivided the concept of ius gentium. Working with already well-formed categories, he carefully distinguished ius inter gentes from ius intra gentes. Ius inter gentes
(which corresponds to modern international law) was something common to
the majority of countries, although, being positive law, not natural
law, it was not necessarily universal. On the other hand, ius intra gentes, or civil law, is specific to each nation.
Lon Fuller
Writing after World War II,
Lon L. Fuller defended a secular and procedural form of natural law. He
emphasised that the (natural) law must meet certain formal requirements
(such as being impartial and publicly knowable). To the extent that an
institutional system of social control falls short of these
requirements, Fuller argued, we are less inclined to recognise it as a
system of law, or to give it our respect. Thus, the law must have a
morality that goes beyond the societal rules under which laws are made.
John Finnis
Sophisticated positivist and natural law theories sometimes resemble
each other and may have certain points in common. Identifying a
particular theorist as a positivist or a natural law theorist sometimes
involves matters of emphasis and degree, and the particular influences
on the theorist's work. The natural law theorists of the distant past,
such as Aquinas and John Locke made no distinction between analytic and
normative jurisprudence, while modern natural law theorists, such as
John Finnis, who claim to be positivists, still argue that law is moral
by nature. In his book Natural Law and Natural Rights (1980, 2011), John Finnis provides a restatement of natural law doctrine.
Analytic jurisprudence
Analytic, or "clarificatory", jurisprudence means taking a neutral
point of view and using descriptive language when referring to various
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. David Hume argued, in A Treatise of Human Nature, that people invariably slip from describing what the world is to asserting that we therefore ought to follow 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 from normative and evaluative questions of what ought to be done.
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 is a growing number of critics
who offer their own interpretations.
Historical school
Historical jurisprudence came to prominence during the debate on the proposed codification of German law. In his book On the Vocation of Our Age for Legislation and Jurisprudence, Friedrich Carl von Savigny argued that Germany
did not have a legal language that would support codification because
the traditions, customs, and beliefs of the German people did not
include a belief in a code. Historicists believe that law originates
with society.
Sociological jurisprudence
An effort to systematically inform jurisprudence from sociological
insights developed from the beginning of the twentieth century, as
sociology began to establish itself as a distinct social science, especially in the United States and in continental Europe. In Germany, Austria and France, the work of the "free law" theorists (e.g. Ernst Fuchs, Hermann Kantorowicz, Eugen Ehrlich and Francois Geny)
encouraged the use of sociological insights in the development of legal
and juristic theory. The most internationally influential advocacy for a
"sociological jurisprudence" occurred in the United States, where,
throughout the first half of the twentieth century, Roscoe Pound, for many years the Dean of Harvard Law School, used this term to characterise his legal philosophy.
In the United States, many later writers followed Pound's lead or
developed distinctive approaches to sociological jurisprudence. In
Australia, Julius Stone
strongly defended and developed Pound's ideas. In the 1930s, a
significant split between the sociological jurists and the American
legal realists emerged. In the second half of the twentieth century,
sociological jurisprudence as a distinct movement declined as
jurisprudence came more strongly under the influence of analytical legal
philosophy; but with increasing criticism of dominant orientations of
legal philosophy in English-speaking countries in the present century,
it has attracted renewed interest. Increasingly, its contemporary focus
is on providing theoretical resources for jurists to aid their
understanding of new types of regulation (for example, the diverse kinds
of developing transnational law) and the increasingly important
interrelations of law and culture, especially in multicultural Western
societies.
Legal positivism
Legal positivism is the view that the content of law is dependent on
social facts and that a legal system's existence is not constrained by
morality.
Within legal positivism, theorists agree that law's content is a
product of social facts, but theorists disagree whether law's validity
can be explained by incorporating moral values.
Legal positivists who argue against the incorporation of moral values
to explain law's validity are labeled exclusive (or hard) legal
positivists. Joseph Raz's
legal positivism is an example of exclusive legal positivism. Legal
positivists who argue that law's validity can be explained by
incorporating moral values are labeled inclusive (or soft) legal
positivists. The legal positivist theories of H. L. A. Hart and Jules Coleman are examples of inclusive legal positivism.
Thomas Hobbes
Hobbes was a social contractarian and believed that the law had peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war that would exist otherwise. In Leviathan, Hobbes argues that without an ordered society life would be "solitary, poor, nasty, brutish and short." It is commonly said that Hobbes's views on human nature were influenced by his times. The English Civil War
and the Cromwellian dictatorship had taken place; and, in reacting to
that, Hobbes felt that absolute authority vested in a monarch, whose
subjects obeyed the law, was the basis of a civilized society.
Bentham and Austin
Bentham's utilitarian theories remained dominant in law until the twentieth century.
John Austin and Jeremy Bentham were early legal positivists who
sought to provide a descriptive account of law that describes the law as
it is. Austin explained the descriptive focus for legal positivism by
saying, "The existence of law is one thing; its merit and demerit
another. Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry." For Austin and Bentham, a society is governed by a sovereign who has de facto
authority. Through the sovereign's authority come laws, which for
Austin and Bentham are commands backed by sanctions for non-compliance.
Along with Hume, Bentham was an early and staunch supporter of the
utilitarian concept, and was an avid prison reformer, advocate for democracy, and firm atheist. Bentham's views about law and jurisprudence were popularized by his student John Austin. Austin was the first chair of law at the new University of London, from 1829. Austin's utilitarian
answer to "what is law?" was that law is "commands, backed by threat of
sanctions, from a sovereign, to whom people have a habit of obedience".
H. L. A. Hart criticized Austin and Bentham's early legal positivism
because the command theory failed to account for individual's compliance
with the law.
Hans Kelsen
Hans Kelsen is considered one of the prominent jurists of the 20th
century and has been highly influential in Europe and Latin America,
although less so in common law countries. His Pure Theory of Law
describes law as "binding norms", while at the same time refusing to
evaluate those norms. That is, "legal science" is to be separated from
"legal politics". Central to the Pure Theory of Law is the notion of a
"basic norm" (Grundnorm)'—a hypothetical norm, presupposed by the jurist, from which all "lower" norms in the hierarchy of a legal system, beginning with constitutional law,
are understood to derive their authority or the extent to which they
are binding. Kelsen contends that the extent to which legal norms are
binding, their specifically "legal" character, can be understood without
tracing it ultimately to some suprahuman source such as God,
personified Nature or—of great importance in his time—a personified
State or Nation.
H. L. A. Hart
In the English-speaking world, the most influential legal positivist of the twentieth century was H. L. A. Hart, professor of jurisprudence at Oxford University. Hart argued that the law should be understood as a system of social rules. In The Concept of Law,
Hart rejected Kelsen's views that sanctions were essential to law and
that a normative social phenomenon, like law, cannot be grounded in
non-normative social facts.
Hart claimed that law is the union primary rules and secondary rules. Primary rules require individuals to act or not act in certain ways and create duties for the governed to obey. Secondary rules are rules that confer authority to create new primary rules or modify existing ones.
Secondary rules are divided into rules of adjudication (how to resolve
legal disputes), rules of change (how laws are amended), and the rule of
recognition (how laws are identified as valid). The validity of a legal
system comes from the "rule of recognition", which is a customary
practice of officials (especially barristers and judges) who identify
certain acts and decisions as sources of law. In 1981, Neil MacCormick
wrote a pivotal book on Hart (second edition published in 2008), which
further refined and offered some important criticisms that led
MacCormick to develop his own theory (the best example of which is his Institutions of Law, 2007). Other important critiques include those of Ronald Dworkin, John Finnis, and Joseph Raz.
In recent years, debates on the nature of law have become
increasingly fine-grained. One important debate is within legal
positivism. One school is sometimes called "exclusive legal positivism"
and is associated with the view that the legal validity of a norm can
never depend on its moral correctness. A second school is labeled
"inclusive legal positivism", a major proponent of which is Wil
Waluchow, and is associated with the view that moral considerations may, but do not necessarily, determine the legal validity of a norm.
Joseph Raz
Joseph Raz's theory of legal positivism argues against the
incorporation of moral values to explain law's validity. In Raz's 1979
book The Authority of Law, he criticised what he called the "weak social thesis" to explain law.
He formulates the weak social thesis as "(a) Sometimes the
identification of some laws turn on moral arguments, but also with, (b)
In all legal systems the identification of some law turns on moral
argument." Raz argues that law's authority is identifiable purely through social sources, without reference to moral reasoning. This view he calls "the sources thesis". Raz suggests that any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence.
Some philosophers used to contend that positivism was the theory that
held that there was "no necessary connection" between law and morality;
but influential contemporary positivists—including Joseph Raz, John Gardner, and Leslie Green—reject
that view. Raz claims it is a necessary truth that there are vices that
a legal system cannot possibly have (for example, it cannot commit rape
or murder).
Legal realism
Legal realism is the view that a theory of law should be descriptive
and account for the reasons why judges decide cases as they do.
Legal realism had some affinities with the sociology of law and
sociological jurisprudence. The essential tenet of legal realism is that
all law is made by humans and thus should account for reasons besides
legal rules that led to a legal decision.
There are two separate schools of legal realism: American legal
realism and Scandinavian legal realism. American legal realism grew out
of the writings of Oliver Wendell Holmes. At the start of Holmes's The Common Law, he claims that "[t]he life of the law has not been logic: it has been experience". This view was a reaction to legal formalism that was popular the time due to the Christopher Columbus Langdell.
Holmes's writings on jurisprudence also laid the foundations for the
predictive theory of law. In his article "The Path of the Law", Holmes
argues that "the object of [legal] study...is prediction, the prediction
of the incidence of the public force through the instrumentality of the
courts."
For the American legal realists of the early twentieth century,
legal realism sought to describe the way judges decide cases. For legal
realists such as Jerome Frank,
judges start with the facts before them and then move to legal
principles. Before legal realism, theories of jurisprudence turned this
method around where judges were thought to begin with legal principles
and then look to facts.
It has become common today to identify Justice Oliver Wendell
Holmes Jr., as the main precursor of American Legal Realism (other
influences include Roscoe Pound, Karl Llewellyn, and Justice Benjamin Cardozo).
Karl Llewellyn, another founder of the U.S. legal realism movement,
similarly believed that the law is little more than putty in the hands
of judges who are able to shape the outcome of cases based on their
personal values or policy choices.
The Scandinavian school of legal realism argued that law can be
explained through the empirical methods used by social scientists. Prominent Scandinavian legal realists are Alf Ross, Axel Hägerström, and Karl Olivecrona. Scandinavian legal realists also took a naturalist approach to law.
Despite its decline in popularity, legal realism continues to
influence a wide spectrum of jurisprudential schools today, including critical legal studies, feminist legal theory, critical race theory, sociology of law, and law and economics.
Critical legal studies
Critical legal studies
are a new theory of jurisprudence that has developed since the 1970s.
The theory can generally be traced to American legal realism and is
considered "the first movement in legal theory and legal scholarship in
the United States to have espoused a committed Left political stance and
perspective".
It holds that the law is largely contradictory, and can be best
analyzed as an expression of the policy goals of a dominant social
group.
Critical rationalism
Karl Popper originated the theory of critical rationalism. According to Reinhold Zippelius
many advances in law and jurisprudence take place by operations of
critical rationalism. He writes, "daß die Suche nach dem Begriff des
Rechts, nach seinen Bezügen zur Wirklichkeit und nach der Gerechtigkeit
experimentierend voranschreitet, indem wir Problemlösungen versuchsweise
entwerfen, überprüfen und verbessern" (that we empirically search for
solutions to problems, which harmonise fairly with reality, by
projecting, testing and improving the solutions).
Legal interpretivism
American legal philosopher Ronald Dworkin's legal theory attacks legal positivists that separate law's content from morality. In his book Law's Empire,
Dworkin argued that law is an "interpretive" concept that requires
barristers to find the best-fitting and most just solution to a legal
dispute, given their constitutional traditions. According to him, law is
not entirely based on social facts, but includes the best moral
justification for the institutional facts and practices that form a
society's legal tradition. It follows from Dworkin's view that one
cannot know whether a society has a legal system in force, or what any
of its laws are, until one knows some truths about the moral
justifications of the social and political practices of that society. It
is consistent with Dworkin's view—in contrast with the views of legal
positivists or legal realists—that no-one in a society may know what its laws are, because no-one may know the best moral justification for its practices.
Interpretation, according to Dworkin's "integrity theory of law",
has two dimensions. To count as an interpretation, the reading of a
text must meet the criterion of "fit". Of those interpretations that
fit, however, Dworkin maintains that the correct interpretation is the
one that portrays the practices of the community in their best light, or
makes them "the best that they can be". But many writers have doubted
whether there is a single best moral justification for the
complex practices of any given community, and others have doubted
whether, even if there is, it should be counted as part of the law of
that community.
Therapeutic jurisprudence
Consequences of the operation of legal rules or legal procedures—or
of the behavior of legal actors (such as lawyers and judges)—may be
either beneficial (therapeutic) or harmful (anti-therapeutic) to people.
Therapeutic jurisprudence ("TJ") studies law as a social force (or agent) and uses social science
methods and data to study the extent to which a legal rule or practice
affects the psychological well-being of the people it impacts.
Normative jurisprudence
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? Some of the different schools and leading thinkers are
discussed below.
Virtue jurisprudence
Aretaic moral theories, such as contemporary virtue ethics,
emphasize the role of character in morality. Virtue jurisprudence is
the view that the laws should promote the development of virtuous
character in citizens. Historically, this approach has been mainly
associated with Aristotle or Thomas Aquinas. Contemporary virtue
jurisprudence is inspired by philosophical work on virtue ethics.
Deontology
Deontology is the "theory of duty or moral obligation". The philosopher Immanuel Kant
formulated one influential deontological theory of law. He argued that
any rule we follow must be able to be universally applied, i.e. we must
be willing for everyone to follow that rule. A contemporary
deontological approach can be found in the work of the legal philosopher
Ronald Dworkin.
Utilitarianism
Mill believed law should create happiness.
Utilitarianism is the view that the laws should be crafted so as to
produce the best consequences for the greatest number of people.
Historically, utilitarian thinking about law has been associated with
the philosopher Jeremy Bentham. John Stuart Mill was a pupil of
Bentham's and was the torch bearer for utilitarian philosophy throughout the late nineteenth century.
In contemporary legal theory, the utilitarian approach is frequently
championed by scholars who work in the law and economics tradition.
John Rawls
John Rawls was an American philosopher; a professor of political philosophy at Harvard University; and author of A Theory of Justice (1971), Political Liberalism, Justice as Fairness: A Restatement, and The Law of Peoples. He is widely considered one of the most important English-language political philosophers of the 20th century.
His theory of justice uses a method called "original position" to ask
us which principles of justice we would choose to regulate the basic
institutions of our society if we were behind a "veil of ignorance".
Imagine we do not know who we are—our race, sex, wealth, status, class,
or any distinguishing feature—so that we would not be biased in our own
favour. Rawls argued from this "original position" that we would choose
exactly the same political liberties for everyone, like freedom of
speech, the right to vote, and so on. Also, we would choose a system
where there is only inequality because that produces incentives enough
for the economic well-being of all society, especially the poorest. This
is Rawls's famous "difference principle". Justice is fairness, in the
sense that the fairness of the original position of choice guarantees
the fairness of the principles chosen in that position.
There are many other normative approaches to the philosophy of law, including critical legal studies and libertarian theories of law.
