Natural Law and the Nature of Law in a Nutshell

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Abstract

[Extract] Contemporary philosophy of law focuses strongly on the idea that law is a socially recognised standard for conduct. Legal positivism, the dominant tradition in contemporary jurisprudence, seeks to understand the nature of law primarily by unpacking the notion of social recognition and its connection to legal normativity. The legal positivist project proceeds on the basis that an adequate and informative descriptive theory of law, including its claims to authority and role in social discourse, can be constructed by examining its dependence on social sources. Philosophy of law, on this view, does not necessarily rely on ethics or political philosophy for a full account of the nature of law or its place in social life. This approach to legal philosophy, however, would have seemed bizarre for much of human history. The vast bulk of legal theories throughout history have proceeded on the basis that an adequate and informative descriptive theory of law must also examine its normative basis in ethics and politics. This assumption flows through the otherwise diverse accounts of law advanced by classical authors such as Plato, Aristotle, Augustine and Thomas Aquinas. These authors adopt a shared methodology that differs sharply from the descriptive orientation of analytical jurisprudence. They begin with an account of practical rationality grounded in the ultimate ends of human action, before exploring the role of the community in promoting human flourishing through engagement with these ends. Law is then understood in terms of its role in enabling the members of the community to lead flourishing lives.
Original languageEnglish
Pages (from-to)100-105
Number of pages6
JournalAustralasian Journal of Legal Philosophy
Volume44
Publication statusPublished - 2019

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