Chapter

Nearly Natural Law

John Gardner

in Law as a Leap of Faith

Published in print September 2012 | ISBN: 9780199695553
Published online January 2013 | e-ISBN: 9780191741296 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199695553.003.0006
Nearly Natural Law

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This chapter approaches the relationship between law and morality by reflecting on the similarities and differences between them, and exposing the false trails that these leave for the unwary. In particular there is thought to be a problem of the ‘normativity’ of morality and a problem of the ‘normativity’ of law. The chapter argues that these are different, indeed contrasting, problems. There is never a live question of why we should be moral. The problem of morality’s ‘normativity’ is essentially the problem of how anything can be inescapable for rational beings. There is always, by contrast, a live question of why we should obey the law. The problem of law’s normativity is the problem of how this can be so, consistently with law being made up of norms. This chapter sketches a solution to the two problems and explores the relationship between law and morality that this solution suggests.

Keywords: normativity; escapability; rationality; morality; defeasibility; presumption; obligation

Chapter.  11729 words. 

Subjects: Jurisprudence and Philosophy of Law

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