Hi everyone! In my previous rounds of research, I looked at the origins of law and philosophy separately. In this round, I looked into how they compare and contrast.
Topic: Similarities and differences between law and philosophy
What is Legal Philosophy?
- Philosophy of law (or legal philosophy) is concerned with providing a general philosophical analysis of law and legal institutions. (Fieser, 2012)
- Issues in the field range from abstract conceptual questions about the nature of law and legal systems to regulatory questions about the relationship between law and morality and the justification for legal purposes. (Fieser, 2012)
- Topics in legal philosophy tend to be more abstract than related topics in political philosophy and applied ethics. (Lieter, 2017)
- For example, the question of how properly to interpret the U.S. Constitution belongs to democratic theory (and hence falls under the heading of political philosophy.) (Lieter, 2017)
- But the analysis of legal interpretation falls under the heading of legal philosophy. (Lieter, 2017)
- Likewise, whereas the question of whether capital punishment is morally permissible falls under the heading of applied ethics, the question of whether the institution of punishment can be justified falls under the heading of legal philosophy. (Lieter, 2017)
- There are roughly three categories into which the topics of legal philosophy fall: analytic jurisprudence, normative jurisprudence, and critical theories of law. (Lieter, 2017)
- Analytic jurisprudence involves providing an analysis of the essence of law – to understand what differentiates it from other systems such as ethics. (Lieter, 2017)
- Normative jurisprudence involves the examination of normative issues about the law, such as restrictions on freedom, obligations to obey the law, and the grounds for punishment. (Lieter, 2017)
- Finally, critical theories of law, such as critical legal studies and feminist jurisprudence, challenge more traditional forms of legal philosophy. (Lieter, 2017)
How philosophy have applied to our laws – Contrasting points of view
- Law and philosophy each have separate origins but both analyze and put into question the nature of our actions. (Sandel, 2008)
- For example, the use of taxes is a heavily debated topic because of certain philosophical theories. Philosophers Robert Nozick and John Rawls have contrasting theories on this issue. (Mack, 2018)
- In a memorable passage in Anarchy, State, and Utopia (1974), Nozick claimed that “Taxation of earnings from labour is on par with forced labour”. (Mack, 2018)
- In Nozick’s libertarian worldview, mandatory taxation is limited to providing for a minimal state that protects and enforces property rights only. (Mack, 2018)
- If an individual work for his/her wealth and he/she is forced to give a fixed amount away, that would be akin to forced labour and a violation of property rights. (Braham, 2019)
- Redistributive transfers for those in need are, therefore, not morally permissible. (Braham, 2019)
- Such transfers would be injustices in the words of Robert Nozick. Providing for those in need is, rather, a task for charity. (Braham, 2019)
- In contrast, Rawls believed that there are no pre-political constraints on property rights, which are themselves part of the “basic structure” of society. (Braham, 2019)
- In the Rawlsian world, a tax system is just a part of the overall system of rules and institutions that satisfy his two principles of justice. (Braham, 2019)
- Hence, given that redistribution is required by Rawlsian justice, it follows that redistributive taxation is morally permissible. (Braham, 2019)
So what is the relationship between law and philosophy?
- In Canada’s law, we do redistribute wealth and we do have income tax which means that our values are better reflected in Rawls’s philosophical standpoint. (Sandel, 2008)
- Philosophy and law both heavily explore the subject of ethics – what is the right thing to do? But the right thing looks different to different groups of people as shown in the example of taxes above. (Sandel, 2008)
- The relationship between law and philosophy is, therefore, not always clear just as what is right and wrong is not always clear. They are, however, closely linked because our law changes with the beliefs of our society which philosophy often reflects. Therefore, the relationship between the two is ever-changing and ever-stagnant. (Sandel, 2008)
Braham, M. (2019, April 25). Taxation: Philosophical Perspectives. Retrieved May 23, 2021, from https://ndpr.nd.edu/reviews/taxation-philosophical-perspectives/
Fieser, J. (2012). Philosophy of Law. Retrieved May 23, 2021, from https://iep.utm.edu/law-phil/
Lieter, B. (2017). Philosophy of law. Retrieved May 23, 2021, from https://www.britannica.com/topic/philosophy-of-law#:~:text=Philosophy%20of%20law%2C%20also%20called,%2C%20practices%2C%20and%20political%20communities.&text=The%20philosophy%20of%20law%20is,part%20of%20philosophy%20more%20generally.
Mack, E. (2018, June 15). Robert Nozick’s political philosophy. Retrieved May 23, 2021, from https://plato.stanford.edu/entries/nozick-political/
Sandel, M. (Director). (2008, September 8). Justice: What’s The Right Thing To Do? Episode 03: “FREE TO CHOOSE” [Video file]. Retrieved May 22, 2021, from https://www.youtube.com/watch?v=Qw4l1w0rkjs
Thanks for reading! Let me know what you guys think – Do you agree more with Rawls or Nozick? Are you for or against taxation?