Philosophy of Law

Philosophy of Law

Philosophy of Law

Philosophy of Law

Synopsis

In Philosophy of Law, Andrei Marmor provides a comprehensive analysis of contemporary debates about the fundamental nature of law--an issue that has been at the heart of legal philosophy for centuries. What the law is seems to be a matter of fact, but this fact has normative significance: it tells people what they ought to do. Is the normative content of a law entirely determined by the facts that make it a law? Are there some normative moral constraints on what the law can be? And can we fully characterize and define the law without assuming a moral conception about what the law ought to be? Finally, is the philosophy of law about describing what law is, or prescribing what it should be?


Marmor argues that the myriad questions raised by the factual and normative features of law actually depend on the possibility of reduction--whether the legal domain can be explained in terms of something else, more foundational in nature. In addition to exploring the major issues in contemporary legal thought, Philosophy of Law provides a critical analysis of the people and ideas that have dominated the field in past centuries. It will be essential reading for anyone curious about the nature of law.

Excerpt

IN THE EARLY SUMMER OF 2008, California highways were dotted with electronic signposts displaying the following message: “Hands Free Phone, July 1st, It’s The Law!” California drivers would have known exactly what the signposts referred to: Earlier that year, a new law was enacted by the California legislature that prohibits the use of cellular phones while driving unless using a hands-free device. The signposts were not, of course, the law. They just reminded drivers, informed them, as it were, that “it’s the law!” Notice that this is an interesting kind of information, because it conveys two different types of content: descriptive and prescriptive. In one sense, the message informs us about something that happened, some events that took place in Sacramento earlier that year. But in a clear second sense, the message reminds us that we ought to behave in a certain way—that is, we are now obliged to use a hands-free device if we want to use a mobile phone while driving; after all, it is now the law. And of course, these two kinds of content are causally related: The legal obligation to use a hands-free device somehow follows from the fact that certain events had actually taken place, namely, that there were some particular people in Sacramento who gathered in a certain place, talked, raised their hands, signed a document, and so forth.

It is in thinking about this duality of content that philosophy of law emerges. The law is, by and large, a system of norms. Law’s essential character is prescriptive: It purports to guide action, alter modes of behavior, constrain the practical deliberation of its subjects; generally speaking, the law purports to give us reasons for action. Needless to say, not all laws impose obligations.

California Vehicle Code 2008, section 23123: “(a) A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.”

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