The Philosophy of Positive Law

The Philosophy of Positive Law PDF

Author: James Bernard Murphy

Publisher: Yale University Press

Published: 2008-10-01

Total Pages: 254

ISBN-13: 0300138016

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In this first book-length study of positive law, James Bernard Murphy 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, Murphy argues, these thinkers represent successive chapters in a single fascinating 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? Murphy demonstrates how the discourse of positive law incorporates both normative and descriptive dimensions of law, and he 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.

The Nature of Positive Law

The Nature of Positive Law PDF

Author: John Mason Lightwood

Publisher: BoD – Books on Demand

Published: 2024-02-23

Total Pages: 437

ISBN-13: 3385350549

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Reprint of the original, first published in 1883.

The Nature of Positive Law

The Nature of Positive Law PDF

Author: John M. Lightwood

Publisher: Forgotten Books

Published: 2015-06-28

Total Pages: 435

ISBN-13: 9781330448281

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Excerpt from The Nature of Positive Law It has now in several ways become evident that the idea of Law upon which Austin founded his system of Jurisprudence cannot be accepted as final, but must be treated as only a first approximation, valuable indeed, but defective, and therefore requiring to be supplemented by further enquiry. I was myself led to this opinion by discovering that the Austinian analysis threw so little light upon the real nature of legal Rights as to be of comparatively small value in investigating their substance as opposed to their mere enforcement. This view was pressed upon me again and again as I examined the various Rights of property, and I believe the current system breaks down entirely when we attempt to explain by it the Roman theory of Possession. Being thus led to distrust the results which I had long accepted as final, I found that there were two ways of attempting to correct them - the historical and the analytical. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.

Positive Law and Objective Values

Positive Law and Objective Values PDF

Author: Andrei Marmor

Publisher: Oxford University Press

Published: 2001

Total Pages: 212

ISBN-13: 9780198268970

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This book presents a comprehensive defence of legal positivism on the basis of a novel account of social conventions. Marmor argues that the law is founded on constitutive conventions, and that consequently moral values cannot determine what the law is. On the basis of a theory of socialconventions and an analysis of law's authoritative nature, the book sets out the scope of law in relation to moral and other critical values. The book also maintains, however, that moral values are objective. It comprises a detailed analysis of the concept of objectivity, arguing that many aspectsof the law, and of moral values, are metaphysically objective.

Aristotle and Natural Law

Aristotle and Natural Law PDF

Author: Tony Burns

Publisher: Bloomsbury Publishing

Published: 2011-10-27

Total Pages: 225

ISBN-13: 1441107169

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Aristotle and Natural Law lays out a new theoretical approach which distinguishes between the notions of 'interpretation,' 'appropriation,' 'negotiation' and 'reconstruction' of the meaning of texts and their component concepts. These categories are then deployed in an examination of the role which the concept of natural law is used by Aristotle in a number of key texts. The book argues that Aristotle appropriated the concept of natural law, first formulated by the defenders of naturalism in the 'nature versus convention debate' in classical Athens. Thereby he contributed to the emergence and historical evolution of the meaning of one of the most important concept in the lexicon of Western political thought. Aristotle and Natural Law argues that Aristotle's ethics is best seen as a certain type of natural law theory which does not allow for the possibility that individuals might appeal to natural law in order to criticize existing laws and institutions. Rather its function is to provide them with a philosophical justification from the standpoint of Aristotle's metaphysics.

Natural Law in Court

Natural Law in Court PDF

Author: R. H. Helmholz

Publisher: Harvard University Press

Published: 2015-06-08

Total Pages: 285

ISBN-13: 0674504615

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The theory of natural law grounds human laws in the universal truths of God’s creation. Until very recently, lawyers in the Western tradition studied natural law as part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law’s foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War. R. H. Helmholz sees a remarkable consistency in how English, Continental, and early American jurisprudence understood and applied natural law in cases ranging from family law and inheritance to criminal and commercial law. Despite differences in their judicial systems, natural law was treated across the board as the source of positive law, not its rival. The idea that no person should be condemned without a day in court, or that penalties should be proportional to the crime committed, or that self-preservation confers the right to protect oneself against attacks are valuable legal rules that originate in natural law. From a historical perspective, Helmholz concludes, natural law has advanced the cause of justice.