Alexander Kaufman
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294672
- eISBN:
- 9780191599637
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294670.003.0002
- Subject:
- Political Science, Political Theory
Two formal arguments in favour of the traditional (libertarian) interpretation of Kant's political thought remain influential. The first argument asserts that Kant's metaphysical principles of right ...
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Two formal arguments in favour of the traditional (libertarian) interpretation of Kant's political thought remain influential. The first argument asserts that Kant's metaphysical principles of right severely constrain the authority of the state to intervene to influence subjective welfare. The second claims that Kant's account of right cannot guide the positive content of the law, since positive law is by definition contingent. The first argument, however, is inconsistent with Kant's explicit arguments in the Rechtslehre, while the second argument confuses contingency of content with contingency of form in Kant's account of positive law.Less
Two formal arguments in favour of the traditional (libertarian) interpretation of Kant's political thought remain influential. The first argument asserts that Kant's metaphysical principles of right severely constrain the authority of the state to intervene to influence subjective welfare. The second claims that Kant's account of right cannot guide the positive content of the law, since positive law is by definition contingent. The first argument, however, is inconsistent with Kant's explicit arguments in the Rechtslehre, while the second argument confuses contingency of content with contingency of form in Kant's account of positive law.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.003.0001
- Subject:
- Political Science, Political Theory
This chapter places the arguments of the rest of the book into philosophical context. It distinguishes between liberty and licence, identifies the natural law method of given‐if‐then reasoning, and ...
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This chapter places the arguments of the rest of the book into philosophical context. It distinguishes between liberty and licence, identifies the natural law method of given‐if‐then reasoning, and distinguishes natural law ethics from natural rights. It argues that a respect for natural rights contributes to the obligatoriness of positive law. This ‘hypothetical imperative’ form of argument is identified as consequentialist but not utilitarian.Less
This chapter places the arguments of the rest of the book into philosophical context. It distinguishes between liberty and licence, identifies the natural law method of given‐if‐then reasoning, and distinguishes natural law ethics from natural rights. It argues that a respect for natural rights contributes to the obligatoriness of positive law. This ‘hypothetical imperative’ form of argument is identified as consequentialist but not utilitarian.
Christine Hayes
- Published in print:
- 2015
- Published Online:
- October 2017
- ISBN:
- 9780691165196
- eISBN:
- 9781400866410
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691165196.003.0010
- Subject:
- Religion, Judaism
This chapter continues to explore the rabbinic conception of Mosaic Law in an attempt to discern the extent to which and the manner in which that conception may have been informed by Greco-Roman ...
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This chapter continues to explore the rabbinic conception of Mosaic Law in an attempt to discern the extent to which and the manner in which that conception may have been informed by Greco-Roman discourses of natural law and positive law. Because the primary discourses of natural law in the Greco-Roman tradition underscore the rational character of the law, it takes up the question of the rationality of the Mosaic Law as represented by the rabbis. The chapter examines rabbinic sources that shed light on a constellation of questions that address the matter of the Law's essential rationality: Is the Law depicted as rational in the sense that it is not arbitrary and contains no contradiction or absurdity, no illogical or paradoxical claim, or does it defy logic and natural reason? Is it depicted as possessing intrinsic rationales or only an extrinsic utility of some kind? Is the Mosaic Law represented as rationally accessible or inaccessible? And does it derive its authority from its rational character or from a coercive sovereign will?Less
This chapter continues to explore the rabbinic conception of Mosaic Law in an attempt to discern the extent to which and the manner in which that conception may have been informed by Greco-Roman discourses of natural law and positive law. Because the primary discourses of natural law in the Greco-Roman tradition underscore the rational character of the law, it takes up the question of the rationality of the Mosaic Law as represented by the rabbis. The chapter examines rabbinic sources that shed light on a constellation of questions that address the matter of the Law's essential rationality: Is the Law depicted as rational in the sense that it is not arbitrary and contains no contradiction or absurdity, no illogical or paradoxical claim, or does it defy logic and natural reason? Is it depicted as possessing intrinsic rationales or only an extrinsic utility of some kind? Is the Mosaic Law represented as rationally accessible or inaccessible? And does it derive its authority from its rational character or from a coercive sovereign will?
Alexander Kaufman
- Published in print:
- 1999
- Published Online:
- November 2003
- ISBN:
- 9780198294672
- eISBN:
- 9780191599637
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198294670.003.0006
- Subject:
- Political Science, Political Theory
Kant's argument for ‘man under moral laws’ as the ‘final purpose of creation’, to which all subjective purposiveness in experience must be subordinated, provides the basis for subordinating the ...
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Kant's argument for ‘man under moral laws’ as the ‘final purpose of creation’, to which all subjective purposiveness in experience must be subordinated, provides the basis for subordinating the teleological interpretation of experience to an account of the necessary commitments of a rational subject. This argument thus grounds the practical employment of teleological judgement. The faculty of teleological judgement may therefore ground judgements through which the metaphysical principles of right may constrain and influence the content of positive law. In addition, Kant's argument for man under moral law as a final purpose of creation constitutes the basis for Kant's otherwise obscure claim, in Perpetual Peace and Conflict of the Faculties, that rational beings are obligated to further the realization of the highest political good (a form of civil society in which citizens, through legal motivation, act consistently with the requirements of morality).Less
Kant's argument for ‘man under moral laws’ as the ‘final purpose of creation’, to which all subjective purposiveness in experience must be subordinated, provides the basis for subordinating the teleological interpretation of experience to an account of the necessary commitments of a rational subject. This argument thus grounds the practical employment of teleological judgement. The faculty of teleological judgement may therefore ground judgements through which the metaphysical principles of right may constrain and influence the content of positive law. In addition, Kant's argument for man under moral law as a final purpose of creation constitutes the basis for Kant's otherwise obscure claim, in Perpetual Peace and Conflict of the Faculties, that rational beings are obligated to further the realization of the highest political good (a form of civil society in which citizens, through legal motivation, act consistently with the requirements of morality).
B. V. A. Röling
- Published in print:
- 1992
- Published Online:
- November 2003
- ISBN:
- 9780198277712
- eISBN:
- 9780191598890
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198277717.003.0011
- Subject:
- Political Science, International Relations and Politics
Many of Grotius's ideas are obsolete and even dangerous due to radical changes in the four centuries since his birth. In particular: (1) Technological change can call into question prevailing ...
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Many of Grotius's ideas are obsolete and even dangerous due to radical changes in the four centuries since his birth. In particular: (1) Technological change can call into question prevailing principles and rules, one case in point being the development of nuclear weapons, which has made Grotius's doctrine of just war dangerous. (2) The growth of international interdependence needs new international structures and new principles and rules of international law. (3) In the period since European decolonization, positive international law, based on conferences and treaties, and reflecting the interests of a wide range of states, has largely replaced the essentially European preoccupations and natural law thinking of Grotius’ time. Today at a ‘Grotian moment’, Grotius should be honoured not by adhering to his teaching but by recognizing his achievement in formulating a new law for a new time.Less
Many of Grotius's ideas are obsolete and even dangerous due to radical changes in the four centuries since his birth. In particular: (1) Technological change can call into question prevailing principles and rules, one case in point being the development of nuclear weapons, which has made Grotius's doctrine of just war dangerous. (2) The growth of international interdependence needs new international structures and new principles and rules of international law. (3) In the period since European decolonization, positive international law, based on conferences and treaties, and reflecting the interests of a wide range of states, has largely replaced the essentially European preoccupations and natural law thinking of Grotius’ time. Today at a ‘Grotian moment’, Grotius should be honoured not by adhering to his teaching but by recognizing his achievement in formulating a new law for a new time.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0002
- Subject:
- Law, Philosophy of Law
This chapter reviews seven basic categories of thought in Western social and legal theory on the relationship between law and society: classical legal theory, natural law tradition, legal positivist ...
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This chapter reviews seven basic categories of thought in Western social and legal theory on the relationship between law and society: classical legal theory, natural law tradition, legal positivist tradition, custom-culture tradition, law and social organisation tradition, selective mirror tradition, and instrumentalist tradition. It appears that the Greeks conceived of positive (or ‘written’) law much as we do, in term of authoritative declarations of the state (keeping in mind that theirs was primarily a city-state, not the nation state of today). Their views are forerunners of the command theory of law, given its definitive formulation by John Austin in the early 19th century. Both Plato and Aristotle believed that the fundamental function of law is the maintenance of social order.Less
This chapter reviews seven basic categories of thought in Western social and legal theory on the relationship between law and society: classical legal theory, natural law tradition, legal positivist tradition, custom-culture tradition, law and social organisation tradition, selective mirror tradition, and instrumentalist tradition. It appears that the Greeks conceived of positive (or ‘written’) law much as we do, in term of authoritative declarations of the state (keeping in mind that theirs was primarily a city-state, not the nation state of today). Their views are forerunners of the command theory of law, given its definitive formulation by John Austin in the early 19th century. Both Plato and Aristotle believed that the fundamental function of law is the maintenance of social order.
Garrett Barden and Tim Murphy
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199592685
- eISBN:
- 9780191595653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592685.003.0001
- Subject:
- Law, Philosophy of Law
The term ‘law’ is usually taken to refer to forms of what is typically called ‘state law’ or ‘positive law’, including constitutional law, enacted legislation, law arising from or associated with the ...
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The term ‘law’ is usually taken to refer to forms of what is typically called ‘state law’ or ‘positive law’, including constitutional law, enacted legislation, law arising from or associated with the courts, and, from many perspectives, elements of international law. This chapter proposes an understanding of ‘law’ as those judgments and choices that in recurrent kinds of circumstances are generally accepted and approved in a particular community. This is referred to as the ‘living law’, the communal law, or the communal moral tradition. The chapter introduces the Roman law definition of justice given in Justinian's Corpus Iuris Civilis — the giving to each what is due — and traces the links between ‘law’ and ‘justice’ in light of these understandings and with particular reference to the thought of Aristotle, St Thomas Aquinas, and Michel Villey. An overview of the book's contents and structure is also included in this chapter.Less
The term ‘law’ is usually taken to refer to forms of what is typically called ‘state law’ or ‘positive law’, including constitutional law, enacted legislation, law arising from or associated with the courts, and, from many perspectives, elements of international law. This chapter proposes an understanding of ‘law’ as those judgments and choices that in recurrent kinds of circumstances are generally accepted and approved in a particular community. This is referred to as the ‘living law’, the communal law, or the communal moral tradition. The chapter introduces the Roman law definition of justice given in Justinian's Corpus Iuris Civilis — the giving to each what is due — and traces the links between ‘law’ and ‘justice’ in light of these understandings and with particular reference to the thought of Aristotle, St Thomas Aquinas, and Michel Villey. An overview of the book's contents and structure is also included in this chapter.
Ingo Gildenhard
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199291557
- eISBN:
- 9780191594885
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199291557.003.0007
- Subject:
- Classical Studies, Prose and Writers: Classical, Early, and Medieval
This chapter discusses Cicero's positions on legal matters. After a survey that brings various facets of this complex and complicated topic into view, the analysis focuses on how he deals with the ...
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This chapter discusses Cicero's positions on legal matters. After a survey that brings various facets of this complex and complicated topic into view, the analysis focuses on how he deals with the perceived non‐coincidence, or even conflict, between (positive) laws or legal institutions and justice. Case studies include his philosophy of crime and punishment in the in Pisonem, which serves as a rhetorical substitute for malfunctioning law courts; and his appeal to the authority of natural law as a benchmark and justification of political action, above all in the Philippics.Less
This chapter discusses Cicero's positions on legal matters. After a survey that brings various facets of this complex and complicated topic into view, the analysis focuses on how he deals with the perceived non‐coincidence, or even conflict, between (positive) laws or legal institutions and justice. Case studies include his philosophy of crime and punishment in the in Pisonem, which serves as a rhetorical substitute for malfunctioning law courts; and his appeal to the authority of natural law as a benchmark and justification of political action, above all in the Philippics.
James Bernard Murphy
- Published in print:
- 2005
- Published Online:
- October 2013
- ISBN:
- 9780300107883
- eISBN:
- 9780300138016
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300107883.003.0003
- Subject:
- Law, Philosophy of Law
This chapter examines Thomas Aquinas' account of law's positivity. For Aquinas, there is a strict analogy between divine law and human law: both kinds of law are deliberately imposed by a legislator ...
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This chapter examines Thomas Aquinas' account of law's positivity. For Aquinas, there is a strict analogy between divine law and human law: both kinds of law are deliberately imposed by a legislator and both kinds of law include precepts whose content is natural and positive. God, on Aquinas' account, both lays down law and lays down particular determinations of natural law. To attempt to understand his account of law's positivity apart from his account of divine law is just as anachronistic and misleading as to attempt to understand his philosophical analysis of law apart from its theological context.Less
This chapter examines Thomas Aquinas' account of law's positivity. For Aquinas, there is a strict analogy between divine law and human law: both kinds of law are deliberately imposed by a legislator and both kinds of law include precepts whose content is natural and positive. God, on Aquinas' account, both lays down law and lays down particular determinations of natural law. To attempt to understand his account of law's positivity apart from his account of divine law is just as anachronistic and misleading as to attempt to understand his philosophical analysis of law apart from its theological context.
James Bernard Murphy
- Published in print:
- 2005
- Published Online:
- October 2013
- ISBN:
- 9780300107883
- eISBN:
- 9780300138016
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300107883.003.0005
- Subject:
- Law, Philosophy of Law
This chapter examines John Austin's discourse of positive law. It shows that although Austin was in some respects a disciple of Jeremy Bentham, he strays furthest from his master in his discourse of ...
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This chapter examines John Austin's discourse of positive law. It shows that although Austin was in some respects a disciple of Jeremy Bentham, he strays furthest from his master in his discourse of “positive law,” which brings him closer to the concerns of Thomas Aquinas and Thomas Hobbes than to those of Bentham.Less
This chapter examines John Austin's discourse of positive law. It shows that although Austin was in some respects a disciple of Jeremy Bentham, he strays furthest from his master in his discourse of “positive law,” which brings him closer to the concerns of Thomas Aquinas and Thomas Hobbes than to those of Bentham.
Neil MacCormick
- Published in print:
- 2008
- Published Online:
- May 2009
- ISBN:
- 9780198268772
- eISBN:
- 9780191713071
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198268772.003.0008
- Subject:
- Law, Philosophy of Law
This chapter applies the three principles of equity to the practical domain of positive law. In such applications they transmute into the principles of ‘society, property, and commerce’. Human beings ...
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This chapter applies the three principles of equity to the practical domain of positive law. In such applications they transmute into the principles of ‘society, property, and commerce’. Human beings do not mutually observe such basic duties as not to kill or harm or defame or steal from each other, they cannot together sustain a peaceful community. Yet we need to live in society, hence we need institutions to back up the basic duties using adjudication and coercion when necessary. Property is the necessary domain for the exercise of liberty. People cannot act freely save with access to physical space and to material resources. Property regimes secure this. Commerce then follows naturally as the engagements people make enable them to engage in exchanges of all sorts with each other, each in pursuit of some reasonable life plan.Less
This chapter applies the three principles of equity to the practical domain of positive law. In such applications they transmute into the principles of ‘society, property, and commerce’. Human beings do not mutually observe such basic duties as not to kill or harm or defame or steal from each other, they cannot together sustain a peaceful community. Yet we need to live in society, hence we need institutions to back up the basic duties using adjudication and coercion when necessary. Property is the necessary domain for the exercise of liberty. People cannot act freely save with access to physical space and to material resources. Property regimes secure this. Commerce then follows naturally as the engagements people make enable them to engage in exchanges of all sorts with each other, each in pursuit of some reasonable life plan.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580088
- eISBN:
- 9780191729409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580088.003.0008
- Subject:
- Law, Philosophy of Law
This chapter begins with a detailed history of the emergence of the term ‘positive’, in relation to law, in the 12th and 13th centuries, most richly and subtly in Aquinas, whose texts are described ...
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This chapter begins with a detailed history of the emergence of the term ‘positive’, in relation to law, in the 12th and 13th centuries, most richly and subtly in Aquinas, whose texts are described and analysed in detail. A concluding purely theoretical section sets out, illustratively, the basic reasons why the alleged debate between ‘natural law theory’ and ‘legal positivism’ is misplaced and futile, through inattention to ambiguities which, once noticed, enable it to simply dissolve. Though human law is largely artefact and artifice, not a conclusion from moral premises, neither its positing nor the recognition of its positivity can be understood without reference to the moral principles that ground and confirm its authority or challenge its pretention.Less
This chapter begins with a detailed history of the emergence of the term ‘positive’, in relation to law, in the 12th and 13th centuries, most richly and subtly in Aquinas, whose texts are described and analysed in detail. A concluding purely theoretical section sets out, illustratively, the basic reasons why the alleged debate between ‘natural law theory’ and ‘legal positivism’ is misplaced and futile, through inattention to ambiguities which, once noticed, enable it to simply dissolve. Though human law is largely artefact and artifice, not a conclusion from moral premises, neither its positing nor the recognition of its positivity can be understood without reference to the moral principles that ground and confirm its authority or challenge its pretention.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0004
- Subject:
- Law, Philosophy of Law
Fundamental changes have occurred in the way in which theorists talk about and understand the relationship between law and society, changes that have taken centuries to develop and are the result of ...
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Fundamental changes have occurred in the way in which theorists talk about and understand the relationship between law and society, changes that have taken centuries to develop and are the result of a cluster of philosophical, political, economic, social, and cultural factors. This chapter elaborates on several key changes. The instrumental tradition is a product of and has contributed to these changes. The chapter presents a theoretical challenge to the mirror thesis based on a law-society framework consisting of the following elements: custom/consent, morality/reason, and positive law.Less
Fundamental changes have occurred in the way in which theorists talk about and understand the relationship between law and society, changes that have taken centuries to develop and are the result of a cluster of philosophical, political, economic, social, and cultural factors. This chapter elaborates on several key changes. The instrumental tradition is a product of and has contributed to these changes. The chapter presents a theoretical challenge to the mirror thesis based on a law-society framework consisting of the following elements: custom/consent, morality/reason, and positive law.
James Bernard Murphy
- Published in print:
- 2005
- Published Online:
- October 2013
- ISBN:
- 9780300107883
- eISBN:
- 9780300138016
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300107883.003.0004
- Subject:
- Law, Philosophy of Law
This chapter examines Thomas Hobbes' account of language and law. Hobbes inherited from the medieval Scholastics a discourse about language and law that is already quite “positivisitic,” in the sense ...
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This chapter examines Thomas Hobbes' account of language and law. Hobbes inherited from the medieval Scholastics a discourse about language and law that is already quite “positivisitic,” in the sense of focusing on the deliberate imposition of meaning and validity. Hobbes often explicitly compares law to language, and legal validity to linguistic meaning. However, it is argued that Hobbes' deeper understanding of law and of language is not purely positivistic or relativistic or skeptical. In fact, his account of legal and linguistic stipulation rests on his account of natural signs.Less
This chapter examines Thomas Hobbes' account of language and law. Hobbes inherited from the medieval Scholastics a discourse about language and law that is already quite “positivisitic,” in the sense of focusing on the deliberate imposition of meaning and validity. Hobbes often explicitly compares law to language, and legal validity to linguistic meaning. However, it is argued that Hobbes' deeper understanding of law and of language is not purely positivistic or relativistic or skeptical. In fact, his account of legal and linguistic stipulation rests on his account of natural signs.
Neil MacCormick
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780198267911
- eISBN:
- 9780191714832
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267911.003.0015
- Subject:
- Law, Philosophy of Law
Morality is differentiated from law above all in being normative but not institutional. According to one approach, morality has the important character of enshrining and depending upon the autonomy ...
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Morality is differentiated from law above all in being normative but not institutional. According to one approach, morality has the important character of enshrining and depending upon the autonomy of moral agents. This then indicates a fundamental distinction between morality and law, even though both focus often on essentially similar questions. This chapter presents an argument to this effect.Less
Morality is differentiated from law above all in being normative but not institutional. According to one approach, morality has the important character of enshrining and depending upon the autonomy of moral agents. This then indicates a fundamental distinction between morality and law, even though both focus often on essentially similar questions. This chapter presents an argument to this effect.
James Bernard Murphy
- Published in print:
- 2005
- Published Online:
- October 2013
- ISBN:
- 9780300107883
- eISBN:
- 9780300138016
- Item type:
- book
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300107883.001.0001
- Subject:
- Law, Philosophy of Law
This book-length study of positive law rewrites central chapters in the history of jurisprudence by uncovering a fundamental continuity among four great legal philosophers: Plato, Thomas Aquinas, ...
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This book-length study of positive law rewrites central chapters in the history of jurisprudence by uncovering a fundamental continuity among four great legal philosophers: Plato, Thomas Aquinas, Thomas Hobbes, and John Austin. In their theories of positive law, it argues, these thinkers represent successive chapters in a single story. That story revolves around a fundamental ambiguity: is law positive because it is deliberately imposed (as opposed to customary law) or because it lacks moral necessity (as opposed to natural law)? These two senses of positive law are not coextensive yet the discourse of positive law oscillates unstably between them. What, then, is the relation between being deliberately imposed and lacking moral necessity? The book demonstrates how the discourse of positive law incorporates both normative and descriptive dimensions of law, and discusses the relation of positive law not only to jurisprudence but also to the philosophy of language, ethics, theories of social order, and biblical law.Less
This book-length study of positive law rewrites central chapters in the history of jurisprudence by uncovering a fundamental continuity among four great legal philosophers: Plato, Thomas Aquinas, Thomas Hobbes, and John Austin. In their theories of positive law, it argues, these thinkers represent successive chapters in a single story. That story revolves around a fundamental ambiguity: is law positive because it is deliberately imposed (as opposed to customary law) or because it lacks moral necessity (as opposed to natural law)? These two senses of positive law are not coextensive yet the discourse of positive law oscillates unstably between them. What, then, is the relation between being deliberately imposed and lacking moral necessity? The book demonstrates how the discourse of positive law incorporates both normative and descriptive dimensions of law, and discusses the relation of positive law not only to jurisprudence but also to the philosophy of language, ethics, theories of social order, and biblical law.
John Finnis
- Published in print:
- 1999
- Published Online:
- March 2012
- ISBN:
- 9780198267904
- eISBN:
- 9780191683404
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198267904.003.0007
- Subject:
- Law, Philosophy of Law
In this chapter, the three types of law are discussed. Natural laws are intrinsic to reason and are never inapplicable. The second type of law refers to that whose relation to natural law is ...
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In this chapter, the three types of law are discussed. Natural laws are intrinsic to reason and are never inapplicable. The second type of law refers to that whose relation to natural law is intrinsic, direct and immediate, but is at times inapplicable in some situations. The third are positive laws, which are defined as the product of human deliberation and choice. The second and third types are linked back to the natural law, having an intrinsic relation to it. To understand legal positivism, the operation of the types of laws stated must first be understood. The term ‘positivity’ is also defined in this chapter, to mean a concept of organizing the reflection on law, legal rights and legal justice. The discussions of Thomas Aquinas and Aristotle about law are used as support for this chapter.Less
In this chapter, the three types of law are discussed. Natural laws are intrinsic to reason and are never inapplicable. The second type of law refers to that whose relation to natural law is intrinsic, direct and immediate, but is at times inapplicable in some situations. The third are positive laws, which are defined as the product of human deliberation and choice. The second and third types are linked back to the natural law, having an intrinsic relation to it. To understand legal positivism, the operation of the types of laws stated must first be understood. The term ‘positivity’ is also defined in this chapter, to mean a concept of organizing the reflection on law, legal rights and legal justice. The discussions of Thomas Aquinas and Aristotle about law are used as support for this chapter.
James Bernard Murphy
- Published in print:
- 2005
- Published Online:
- October 2013
- ISBN:
- 9780300107883
- eISBN:
- 9780300138016
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300107883.003.0001
- Subject:
- Law, Philosophy of Law
This introductory chapter begins by considering the meaning of positive law. It then discusses debates over the relative importance of nature and convention in explaining many kinds of human conduct; ...
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This introductory chapter begins by considering the meaning of positive law. It then discusses debates over the relative importance of nature and convention in explaining many kinds of human conduct; how the discourse of positive law takes its starting point from theories that have already transcended the nature-convention dichotomy; the logic of nature, custom, and enactment; positive language and positive law; the quandaries of positive law; and legal positivism and the end of positive law.Less
This introductory chapter begins by considering the meaning of positive law. It then discusses debates over the relative importance of nature and convention in explaining many kinds of human conduct; how the discourse of positive law takes its starting point from theories that have already transcended the nature-convention dichotomy; the logic of nature, custom, and enactment; positive language and positive law; the quandaries of positive law; and legal positivism and the end of positive law.
Mary Ellen O'Connell
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195368949
- eISBN:
- 9780199871100
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195368949.001.0001
- Subject:
- Law, Public International Law
International law supports order in the world and the attainment of humanity's fundamental goals of advancing peace, prosperity, human rights, and environmental protection. Yet, there have been ...
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International law supports order in the world and the attainment of humanity's fundamental goals of advancing peace, prosperity, human rights, and environmental protection. Yet, there have been voices for centuries attacking international law in order to promote the dominance or hegemony of a single nation. After 9/11, such advocates succeeded in getting America's leaders to invade Iraq, establish Guantanamo Bay and black sites, use waterboarding and other forms of torture and coercion during interrogation, and execute individuals in defiance of the International Court of Justice. This book reveals that to be persuasive, opponents of international law have misrepresented what international law is and how it works. Anti-international law voices have presented international law as powerless and unworthy of respect. To clear away the myths, the book draws on new developments in natural law, positive law, and process theory. The resulting new classical theory demonstrates that international law's power or authority is explained by the same theory that explains the authority of law within nations. International law has authority because it is widely accepted as law. Part of the evidence of that acceptance is found in the fact international law has forceful means of enforcement — armed force, sanctions, countermeasures, and courts. The book provides many examples of international law in action — the real international law with the power to support the interest of all humanity.Less
International law supports order in the world and the attainment of humanity's fundamental goals of advancing peace, prosperity, human rights, and environmental protection. Yet, there have been voices for centuries attacking international law in order to promote the dominance or hegemony of a single nation. After 9/11, such advocates succeeded in getting America's leaders to invade Iraq, establish Guantanamo Bay and black sites, use waterboarding and other forms of torture and coercion during interrogation, and execute individuals in defiance of the International Court of Justice. This book reveals that to be persuasive, opponents of international law have misrepresented what international law is and how it works. Anti-international law voices have presented international law as powerless and unworthy of respect. To clear away the myths, the book draws on new developments in natural law, positive law, and process theory. The resulting new classical theory demonstrates that international law's power or authority is explained by the same theory that explains the authority of law within nations. International law has authority because it is widely accepted as law. Part of the evidence of that acceptance is found in the fact international law has forceful means of enforcement — armed force, sanctions, countermeasures, and courts. The book provides many examples of international law in action — the real international law with the power to support the interest of all humanity.
Brian Z. Tamanaha
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244676
- eISBN:
- 9780191715044
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244676.003.0001
- Subject:
- Law, Philosophy of Law
A formidable threshold task in the project to construct a general jurisprudence is to come up with a characterisation of the law-society relationship. This relationship is too complex and unruly to ...
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A formidable threshold task in the project to construct a general jurisprudence is to come up with a characterisation of the law-society relationship. This relationship is too complex and unruly to capture fully in a single formula, and can be approached from too many different perspectives. This chapter describes a working framework for the relationship between law and society, pared down to two basic components. The first component consists of two core themes about the relationship between law and society: the idea that law is a mirror of society and the idea that the function of law is to maintain social order. The second component consists of a breakdown of connections between three elements: custom/consent, morality/reason, and positive law. Every theory about law and society encompasses one or another or both of these components.Less
A formidable threshold task in the project to construct a general jurisprudence is to come up with a characterisation of the law-society relationship. This relationship is too complex and unruly to capture fully in a single formula, and can be approached from too many different perspectives. This chapter describes a working framework for the relationship between law and society, pared down to two basic components. The first component consists of two core themes about the relationship between law and society: the idea that law is a mirror of society and the idea that the function of law is to maintain social order. The second component consists of a breakdown of connections between three elements: custom/consent, morality/reason, and positive law. Every theory about law and society encompasses one or another or both of these components.
