The so-called „outsider jurisprudence” aims to provide an analysis of how the law is structured to promote the interests of white men and exclude women and people of color. One of the main objectives of feminist jurisprudence, for example, is to show how patriarchal assumptions have shaped the content of laws in various areas: property, contracts, criminal law, constitutional law, and civil rights. In addition, feminist academics challenge traditional ideals of judicial decision-making, according to which judges settle disputes by applying neutral rules in an impartial and objective manner. Feminists, of course, have always questioned whether it is possible for judges to achieve an objective and unbiased perspective, but now question whether the traditional model is desirable. Dworkin believes that jurisprudence is and should be interpretative: „Judges should decide difficult cases by interpreting the political structure of their community in the following, perhaps special, way: trying to find the best justification they can find in the principles of political morality for the structure as a whole, from the deepest constitutional rules and agreements to the details of, for example, the private law of tortious liability” (Dworkin 1982, p. 165). So there are two elements of a successful interpretation. First, where an interpretation is adopted in so far as it justifies the particular practices of a given company, it must be part of those practices in such a way as to be consistent with the existing legal documents defining those practices. Second, since an interpretation provides a moral justification for these practices, it must present them in the best possible moral light.
Therefore, Dworkin argues, a judge should try to interpret a case something like this: as a historical question, legal realism emerged in response to legal formalism, a particular model of legal reasoning that equates legal reasoning with syllogistic argumentation. According to the formalist model, the legal outcome (i.e. detention) flows logically from the legal norm (main premise) and a presentation of the relevant facts (secondary premise). Realists believe that formalism underestimates the capabilities of judicial legislation in that it represents legal outcomes as they are syllogistically caused by valid rules and facts. Because if legal outcomes are logically implied by statements that bind judges, it follows that judges have no legal authority to obtain contradictory results. Subjects in philosophy of law tend to be more abstract than related subjects in political philosophy and applied ethics. For example, while the question of how to correctly interpret the United States. The constitution belongs to the theory of democracy (and therefore belongs to political philosophy), the analysis of the interpretation of law is part of the philosophy of law. While the question of whether the death penalty is morally permissible is a matter of applied ethics, the question of whether the imposition of the penalty can be justified is a matter of philosophy of law. A second important debate, often referred to as the „hart dworkin debate”[14], concerns the struggle between the two most dominant schools of the late 20th century. and at the beginning of the 21st century, right-wing interpretivism and legal positivism. On the Kantian side, the law was intended to facilitate transactions in the market, as transactions in the market best reflect autonomous judgments about the value of individual preferences.
At least ideally, individuals express and realize their preferences through mutually consensual market transactions conducted from positions of equal bargaining power. Therefore, transactions in the market are ideally both efficient (because they tend to maximize wealth without adverse effects on third parties) and fair (because all parties agree). Ronald Dworkin rejects the social facts thesis of positivism on the grounds that there are certain legal norms whose authority cannot be explained by social facts. When ruling on difficult cases, for example, judges often invoke moral principles which, according to Dworkin, do not derive their legal authority from the social criteria of legality contained in a rule of recognition (Dworkin 1977, p. 40). However, since judges are required to take these principles into account where appropriate, they must be characterized as law. Thus, Dworkin concludes: „If we treat principles as a law, we must reject the first principle of positivists that the law of a community differs from other social norms by a test in the form of a master rule” (Dworkin 1977, p. 44).
Unlike all forms of naturalism, there is legal positivism, which consists of roughly three theoretical obligations: (i) the thesis of the social fact, (ii) the thesis of conventionality and (iii) the thesis of separability. The social fact thesis (also known as the pedigree thesis) asserts that it is a necessary truth that legal validity is ultimately a function of certain types of social facts. The conventionality thesis emphasizes the conventional nature of the law and asserts that the social facts that lead to legal validity are authoritative on the basis of a kind of social convention. The thesis of separability, at the most general level, simply denies the thesis of overlapping naturalism; according to the separability thesis, there is no conceptual overlap between the terms law and morality. Unlike experimental jurisprudence, which examines the content of our concepts of human rights with the methods of the social sciences[6], analytical jurisprudence seeks to provide a general representation of the nature of law through the tools of conceptual analysis. The report is general in that it refers to the universal features of the law that apply at any time and in any place. [7] While lawyers are interested in what law is on a particular topic in a particular jurisdiction, legal philosophers are interested in identifying the characteristics of law that are shared across cultures, times, and places. Taken together, these fundamental features of law provide the kind of universal definition that philosophers seek.
The general approach allows philosophers to ask questions about what separates, for example, law from morality, politics or practical reason. [7] Often, researchers in this field assume that the law has a unique set of characteristics that distinguish it from other phenomena, although not all share the hypothesis. It is worth noting the relationships between legal realism, formalism and positivism. While it is often assumed that formalism goes hand in hand with positivism, it turns out that legal realism not only coincides with positivism, but also presupposes the truth of the three fundamental theses of positivism. In fact, the realist recognizes that the law is essentially the product of official activity, but believes that judicial legislation takes place more often than is generally assumed. But the idea that the law is essentially the product of official activity presupposes the truth of the conventionality of positivism, social facts and theses of separability. Although the realists` concerns are empirical (that is, they attempt to identify the psychological and sociological factors that influence judicial decision-making), their implicit conceptual obligations were decidedly positivist.