Analyzing the Law
Building on the foundation of idealism and pragmatism presented in Chapter 2, this chapter explores multiple theories about the role of law in society. There are many debates about the role of law in society. There are also many philosophies or ideas that citizens, legislators, and criminal justice system personnel draw upon when making decisions about law. The six main concepts of law raise questions that philosophers, practitioners, and students, alike, have pondered. There is clearly no single answer to these questions, as demonstrated by the Hart-Devlin debate.
The Hart-Devlin Debate
Evaluating the six concepts of laws demonstrates the differences between idealist and pragmatist philosophies, as illustrated in the Hart-Devlin debate. Devlin's philosophy of legal moralism takes an idealist's approach to role of law in society. Devlin's philosophy of law argued that the collective judgment of a society should guide enforcement of laws against both private and public behavior that was deemed immoral. According to Devlin, when a behavior reached the limits of "intolerance, indignation and disgust," legislation against it was necessary. Hart's philosophy of legal positivism is a pragmatist's approach to the role of law in society. Hart's philosophy of law held that laws should not be based only on popular moral consensus, in the absence of other harms. This is consistent with Hart's argument that one role of law was to protect individual liberty.
Other Schools of Legal Philosophy
Competing legal theories are presented, though not exhaustively, to emphasize the diversity views of among legal philosophers. Exploring legal naturalism, legal realism, legal paternalism, interpretative jurisprudence, everyday pragmatism, and critical theory assists in developing, cultivating, and clarifying ideas about what the law should (or should not) accomplish.