Let me get this out of the way: the nature and abstract definition of law are simply not interesting to lawyers and law students. I’ve taught this subject in the past and I myself think it’s about as thrilling as watching grass grow.
The fundamental questions in the philosophy of law are about as interesting to most law students as a lecture on the history of paper clips. Who cares about the metaphysical nature of legal concepts when you’ve got a bar exam to study for? Questions like:
(1) What is law?
(2) What are the criteria for legal validity?
(3) What is the relationship between law and morality?
are too theoretical to be of use to someone who wants to plead a case in court. It’s not like you can just quote from HLA’s The Concept of Law and expect the judge to be impressed.
In contrast, the philosophical investigation of other domains, like the philosophy of art or the philosophy of money, can at least incite our curiosity and yield some intrinsically fascinating questions.
In the philosophy of art, certain museum exhibits make us question the nature of art and who gets to decide whether they are art. Consider Marcel Duchamp’s Fountain (1917). Or even this banana taped on a wall.
In the philosophy of money, some items and inventions make us question the nature and essence of money, such as bitcoins and virtual properties obtained in a massively multi-player online role-playing game.
Contrast this to the fundamental questions in the philosophy of law. The question “what is the nature of legal phenomena?” appears to be a trivial thing. Law students and lawyers have no difficulty identifying laws—these are simply the official acts of the State, i.e., the constitution, the statutes, treaties, judicial decisions, among others. One simply goes to a law library and point at the shelves where the laws are contained.
The first-year law student has an intuitive understanding that the canon law of the Roman Catholic Church is not law; that the penal code is law; that the house rules of a casino are not law; that the command of a gunman is not law; that a contract has the force of law; and so on.
Law and legality are phenomena that we encounter every day. Just ask any normal driver in relation to traffic rules.
Presumably, the law school and the legal profession are oriented towards legal practice, not abstract contemplations on legal theories. A course in the philosophy of law therefore leaves a lingering question in the mind of every law student and lawyer: what is the practical value of this course?
Thus, before beginning any course on the philosophy of law, the first order of the day should be to address that very question: what is the use of the philosophy of law? What is its relevance to our lives?
It is proper to begin with the concrete dilemmas in the “real world” that gave rise to these fundamental questions on the nature and definition of law.
What, in the philosophy of law, could be the functional equivalent of Duchamp’s Fountain or bitcoins? What things make us question the nature of law, just us Duchamp’s Fountain makes us question the nature of art and bitcoins make us question the nature of money?
Philosophy of law’s version for these things are the phenomena of “unjust laws”. And in fact, this is where the history of the discipline properly began.
If a law is unjust, is it still law? If the unjust law is valid law, do I have the obligation to obey it? If I don’t have the obligation to obey an unjust law, then should I be prosecuted or penalized for my disobedience?
We have seen courts, governments, and international organizations grapple these fundamental questions in the following scenarios:
(1) The prosecution of war crimes in the Nazi regime
(2) The prosecution of human rights abuses in the apartheid regime in Africa
(3) The war on terror and the American invasion of Iraq
(4) The legitimacy of political revolutions and regime changes
(5) The question on whether international law is “really” law
(6) The justifications for civil disobedience
(7) The rights of consciousness objectors
(8) The concept of universal human rights
(9) The existence of unenumerated fundamental constitutional rights, which can determine whether you have the right of abortion, contraception, and certain sexual practices, et al.
(10) The equity jurisdiction of courts
In the highest levels of all legal systems, the philosophy of law is of paramount importance. Legal systems are complex and multifaceted, and the decisions made by legal professionals have far-reaching implications for society as a whole.