Analytic Jurisprudence distinguished between what the law is and

what the law should be

Analytic jurisprudence means the use of a neutral point of view and descriptive language when
referring to the aspects of legal systems. Rejected natural law's fusing of what law is and what it
ought to be.
David Hume famously argued in A Treatise of Human Nature that people invariably slip between
describing that the world is a certain way to saying therefore we ought to conclude on 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 to normative and
evaluative ought questions.
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
are a growing number of critics who offer their own interpretations.

ANSWERING THE QUESTION WHAT IS LAW

Natural Law: an unjust law is no law at all
Certain rights or values are inherent by virtue of human nature and can be
universally understood through human reason.
LEGAL IMPLICATIONS: Common law is not based on inherent rights, but is the
legal tradition whereby certain rights or values are legally recognized by virtue of
already having judicial recognition or articulation. Natural law is often contrasted
with the human-made laws (positive law) of a given political community, society,
or state. In legal theory, the interpretation of a human-made law requires some
reference to natural law. On this understanding of natural law, natural law can be
invoked to criticize judicial decisions about what the law says, but not to criticize
the best interpretation of the law itself.
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
may be supported by decisive reasons for action. In other words, there must be a
compelling rationale behind following human law. There are two readings of the
natural law jurisprudential stance.
1. The Strong Natural Law Thesis holds that if a human law fails to be
backed-up by decisive reasons, then it is not properly called 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).
2. The Weak Natural Law Thesis holds that If a human law fails to be
backed-up by decisive reasons, then it can still be called a law, but it
must be recognised as a defective law.

Legal Positivism law is simply posited in accordance with socially

accepted rules.

Laws may seek to enforce justice, morality, or any other normative end, but
their success or failure in doing so does not determine their validity. Provided
a law is properly formed, in accordance with the rules recognized in the
society concerned, it is a valid law, regardless of whether it is just by some
other standard
Legal positivism sits in opposition to natural law theories of jurisprudence,
with particular disagreement surrounding the natural lawyer's claim that
there is a necessary connection between law and morality.
H. L. A Hart defines legal positivism
o laws are commands of human beings
o there is no necessary connection between law and moralsthat is,
between law as it is and as it ought to be
o analysis of legal concepts is worthwhile and is to be distinguished from
history or sociology of law, as well as from criticism or appraisal of law, for
example with regard to its moral value or to its social aims or functions
o a legal system is a closed, logical system in which correct decisions can
be deduced from predetermined legal rules without reference to social
considerations
o moral judgments, unlike statements of fact, cannot be established or
defended by rational argument, evidence, or proof ("noncognitivism" in
ethics)
Law is nothing more than a set of rules to provide order and governance of
society. No legal positivist, however, argues that it follows that the law is
therefore to be obeyed, no matter what. This is seen as a separate question
entirely.
o What the law is (lex lata) - is determined by historical social practice
(resulting in rules)
o What the law ought to be (lex ferenda) - is determined by moral
considerations.
Notable supporters:
o Bentham
o Austin - law is the command of the sovereign backed by the threat of
punishment. Contemporary legal positivism has long abandoned this view.
o Kelsen law as a conception of binding norms notion of a 'basic norm
(Grundnorm): a hypothetical norm, presupposed by the jurist, from which
in a hierarchy all 'lower' norms in a legal system, beginning with
constitutional law, are understood to derive their authority or
'bindingness'
o H. L. A. Hart - argued that the law should be understood as a system of
social rules. Hart rejected Kelsen's views that sanctions were essential to
law and rejected that a normative social phenomenon, like law, cannot be
grounded in non-normative social facts.
Law is essentially a system of primary social rules that guide the
conduct of law's subjects, and secondary rules that regulate how
the primary rules may be changed, how disputes about them are
to be adjudicated and, especially, how the primary rules are to
be identified. Hart argues that this last function is performed by
a "rule of recognition", a customary practice of the officials

(especially judges) that identifies certain acts and decisions as

sources of law. [constitutional significance)
Rule of Recognition: The idea of the rule of recognition, a social
rule that differentiated between those norms that have the
authority of law and those that do not. Hart viewed the rule of
recognition as an evolution from Hans Kelsen's "Grundnorm", or
"basic norm".
Joseph Raz - Joseph Raz defends the positivist outlook, but criticised Hart's
"soft social thesis" approach in The Authority of Law. Raz argues that law
is authority, identifiable purely through social sources, without reference
to moral reasoning. Any categorisation of rules beyond their role as
authority is better left to sociology than to jurisprudence. (some
connection between law and morality though, necessary truth that there
are vices a legal system cannot possibly have, etc. rape or murder)

LEGAL INTERPRETIVISM:
Ronald Dworkin - attacked Hart and the positivists for their refusal to treat
law as a moral issue. Dworkin argues 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 morally best justification
for the institutional facts and practices that we intuitively regard as legal.
o

It follows on 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
moral truths about the justifications for the practices in that society. It is
consistent with Dworkin's viewin contrast with the views of legal
positivists or legal realiststhat no-one in a society may know what its
laws are, because no-one may know the best justification for its practices.
Dworkin maintains that the correct interpretation is the one that puts the
political practices of the community in their best light, or makes of them
the best that they can be. But many writers have doubted whether there
is a single best justification for the complex practices of any given
community, and others have doubted whether, even if there are, they
should be counted as part of the law of that community.

Legal Realism: law should be understood and determined by the actual practices
of courts, law offices, and police stations, rather than as the rules and doctrines
set forth in statutes or learned treatises. Essential tenet of legal realism is that
all law is made by human beings and, thus, is subject to human foibles, frailties
and imperfections.

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?

Virtue jurisprudence emphasize role of character in morality, virtue

jurisprudence is the view that the laws should promote the development of
virtuous characters by citizens. Historically, this approach is associated
mainly with Aristotle or Thomas Aquinas later.
Deontology - theory of duty or moral obligation, Kant - 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 - laws should be crafted so as to produce the best
consequences for the greatest number of people possible.
John Rawls - veil of ignorance idea - 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 argues 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. 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.
Libertarian idea - insistence that the amount of government intervention
should be kept to a minimum and the primary functions of law should be
enforcement of contracts and social order, though "social order" is often
seen as a desirable side effect of a free market rather than a philosophical
necessity.

Normative: describe the way something ought to be done according to a value

position. As such, normative arguments can be conflicting, insofar as different
values can be inconsistent with one another. For example, from one normative
value position the purpose of the criminal process may be to repress crime. From
another value position, the purpose of the criminal justice system could be to
protect individuals from the moral harm of wrongful conviction.
Descriptive (codifies accepted norms) or prescriptive (coerces new activity) is a
separate issue from judicial interpretation of statute. Some legislation
is descriptive in the sense that you've used.