Theory and Context Boulder, CO: It is binding over all the globe, in all countries, and at all times: The term "nature of law" refers here to those essential properties that a given set of phenomena must exhibit in order to be law.
In this passage, Blackstone articulates the two claims that constitute the theoretical core of classical naturalism: It is worth noting the relations between legal realism, formalism, and positivism.
The third derives from the less than sterling history of conceptual analysis itself, which is replete with conceptual claims that were once thought to be necessarily true but that we have subsequently had to revise or abandon in light of further experience.
Coleman"Authority and Reason," in Robert P. He then specifies this idea in the following way: Leiter is nevertheless concerned -- and I think rightfully so -- that these explanations may not be sufficiently compelling on their own.
If the only legitimate use of the state coercive force is to protect people from harm caused by others, then statutes prohibiting public sex are impermissible because public sex might be offensive but it does not cause harm in the Millian sense to others. As an historical matter, legal realism arose in response to legal formalism, a particular model of legal reasoning that assimilates legal reasoning to syllogistic reasoning.
Different forms of empirical inquiry might also yield somewhat different concepts of law, which pick out slightly different natural phenomena.
Over himself, over his own body and mind, the individual is sovereign Millpp. While enforcement of certain social norms protecting life, safety, and property are likely essential to the existence of a society, a society can survive a diversity of behavior in many other areas of moral concern-as is evidenced by the controversies in the U.
In response, Smith points out that this strategy of argument leads to absurdities: Given the rapidly developing state of the debates in meta-ethics, I am, however, less inclined to think that we can come to firm conclusions about the relationship between legal and moral objectivity.
The problem with the deterrence theory is that it justifies punishment of one person on the strength of the effects that it has on other persons.
There are, then, two elements of a successful interpretation. While there might be a moral obligation to obey a particular law because of its moral content for example, laws prohibiting murder or because it solves a coordination problem for example, laws requiring people to drive on the right side of the roadthe mere fact that a rule is law does not provide a moral reason for doing what the law requires.
The Obligation to Obey Law Natural law critics of positivism for example, Fuller frequently complain that if positivism is correct, there cannot be a moral obligation to obey the law qua law that is, to obey the law as such, no matter what the laws are, simply because it is the law.
On this view, to paraphrase Augustine, an unjust law is no law at all. The second arises from a growing body of empirical work that has discovered parochialism in many of the linguistic intuitions that philosophers sometimes draw upon and assume to be universal.
The Separability Thesis The final thesis comprising the foundation of legal positivism is the Separability Thesis.
Consider three ways that one might try to understand the basic legal realist claims under discussion. When turning to adjudication, however, it is less clear that our practices have been as successful, or even what the relevant criterion of success might be.Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy Published: July 31, Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy, Oxford UP,pp., $ (pbk), ISBN Get this from a library!
Essays in jurisprudence and philosophy. [H L A Hart] -- These essays, which cover a wide range of topics, were written by Professor Hart between andand first appeared in a variety of different books and journals.
The chapters in this book were written in the twenty-eight years following H. L. A. Hart's inaugural lecture in as Professor of Jurisprudence at Oxford.
Originally published in England, the United States, and elsewhere, in many different journals and books, these chapters cover a wide range of topics. Philosophy of law (or legal philosophy) is concerned with providing a general philosophical analysis of law and legal institutions.
Issues in the field range from abstract conceptual questions about the nature of law and legal systems to normative questions about the relationship between law and morality and the justification for various legal institutions.
Essays in Jurisprudence and Philosophy. Creator. Hart, Herbert Lionel Adolphus.
Bibliographic Citation. New York: Oxford University Press, p. Permanent Link Essays on Bentham: Studies in Jurisprudence and Political Theory Hart, Herbert Lionel Adolphus () The. They include Professor Hart's first attempt to demonstrate the relevance of linguistic philosophy to jurisprudence, and his first defence of the form of legal positivism later developed in his Concept of Law; his studies of the distinctive teaching of American and Scandinavian jurisprudence; a general survey of the problems of legal philosophy.Download