John Finnis

in Philosophy of Law

Published in print April 2011 | ISBN: 9780199580088
Published online September 2011 | e-ISBN: 9780191729409 | DOI:

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This introductory chapter discusses the ‘positivist’ ambition to consider law simply as a kind of social fact to be described, and the corresponding ‘social-fact sources thesis’. Any such description, if general, must consider human needs. Accurately describing law's sources displays the many evaluative considerations of need and desirability that contribute to a legally sound identification of the law's content and authority. Normative/evaluative legal theory can do — with greater explanatory (as well as justificatory) power — all that a would-be value-free general theory of law can. The relation between law and morality cannot be considered without asking what morality requires in complex society. The Introduction's second section relates Part Two's eleven chapters to those themes. The third section, on legal reasoning, puts Dworkin's ‘one right answer’ thesis into the context of legal system as not momentary, and discusses the problem of lawless judging. The final section identifies the two senses of ‘legal system’, relating them to the author's work on constitutional transitions and to the legally important distinction between statements and propositions.

Keywords: value-free description; social-fact sources; needs; general theory of law; Dworkin; one right answer thesis; legal system; morality

Chapter.  9149 words. 

Subjects: Jurisprudence and Philosophy of Law

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