Introduction to Law

(Nora) #1
Philosophy of Law

14


Jaap Hage


14.1 What Is Philosophy of Law?


Otherwise than, for instance, private law, constitutional law, or criminal law,
philosophy of law does not deal with a particular subfield of law. Philosophy of
law is a branch of philosophy and, more in particular, the branch that deals with
philosophical questions about law. Examples of such questions are as follows:



  • how punishing criminals can be justified,

  • what the essence of the rule of law is,

  • whether human rights would still exist if they were not included in a statute or
    treaty,

  • why contracts are binding,

  • what the nature of law is.


In this chapter, it will not be possible to discuss all legal philosophical questions.
We opted for the last question that may be the most fundamental one: what is law’s
nature? Philosophers of law have discussed this question for centuries, and appar-
ently they still disagree. This disagreement is partly caused by the fact that the
question is ambiguous and can be asked with different purposes in mind.


The Normative Question The question about law’s nature is often asked in the
context of a decision-making procedure. For instance, a judge asks herself how a
particular case is to be decided. She wants to apply the law, and the question after
law’s nature is a step towards the solution for the case at hand.


J. Hage (*)
Maastricht European Private Law Institute (M-EPLI), Maastricht University, Maastricht, The
Netherlands
e-mail:[email protected]


J. Hage and B. Akkermans (eds.),Introduction to Law,
DOI 10.1007/978-3-319-06910-4_14,#Springer International Publishing Switzerland 2014


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