Describing Law Normatively

John Finnis

in Philosophy of Law

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

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A fundamental reconsideration of the project of a general theory of law, this chapter argues that no general account can be given of what law in fact is without explicit attention to why it has the features or elements it has. The best way in to an explanatory general description of law can start by attending to primal situations such as playground bullying, and to what is needed in such a situation. The primary reality of the law is as a reason for action, a claim on my (its subject's) decision and action. Such legal claims (obligations) fulfil the need for positive law best when they are moral obligations. Brian Leiter's sound objections to theorizing by ‘conceptual analysis’ do not support his own ‘naturalism’. Hart's best work on law was not conceptual. Coleman's criteria for evaluating theories of law are radically unsound. Gardner's new account of legal positivism rightly identifies it as at best a minor fragment of legal theory, and undermines its claim to be any part at all.

Keywords: general theory of law; what and why questions; reasons for action; legal obligation; morally obligatory; Leiter; Coleman; Gardner; legal positivism; Hart; conceptual analysis

Chapter.  11656 words. 

Subjects: Jurisprudence and Philosophy of Law

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