Legal Theory encourages students to take a reflective interest in the study of law - its intellectual foundations, its social conditions, its relationships with morality and politics, and its kinship with other disciplines, especially philosophy, ethics and social theory.
In the Western tradition this reflection starts with Aristotle’s concept of Nomos which defined law as the “principles and customs which guide the whole way of life of a community, including specific commands and prohibitions…but also including accounts of the nature of things and justifications of the law itself?” We can translate this description in four key questions:
- What guides the life of the community (morality)?
- What can be commanded as necessary or prohibited (power)?
- What do we understand as the real nature of things (truth)?
- What justifies the restrictions, judgements and force of law (legality)?
In other words, law refers to metaphysical concepts and very concrete human behaviour and social practices in our day to day lives: stopping for a red light even if no car is coming; paying taxes even if we disagree with the government. Why do we do these things? Is it because we want to do the “right” thing? Or simply because it is the law? Put differently: why do humans need and create laws and what do we aim to accomplish through law?
Within the Western tradition, law often reflects religious values (for example, those of the Ten Commandments) while Roman Law established the first sophisticated “rule of law”. From the authoritarian commands of Kings, Queens or dictators to the promise of “social contracts” and modern deliberative democracy, law has developed into a highly complex tool to organize the way we live together. It is now perceived as safe-guarding our freedom and equality, as solidifying the power of economic and political elites, empowering minorities to fight racism and discrimination, a tool to control property and territory, and organize global flows of people and products. Law is, most importantly, also our main instrument to overcome violence and injustice, punish, settle conflicts and create reconciliation.
The course examines all these aspects in a historical, analytical and critical manner by showcasing different legal-philosophical positions, mainly taken from the Western jurisprudential canon while also looking at Indigenous and Asian perspectives. Some of the theories we engage with are: Natural Law, Legal Positivism, Legal Hermeneutics, Legal Realism, Feminist Jurisprudence, Legal Pluralism, Legal Pragmatism. In addition, the course engages with the wider framework of law: moral and political philosophy.
In sum, Legal Theory reflects on fundamental problems of modern law from a legal, moral and political perspective and provides students with a deeper understanding of the presuppositions that inform law, legal institutions and their own future professional practices. Its ultimate goal is to clarify what it means to be ‘before the law’ and if, how and where ‘law meets justice’.
