No CrossRef data available.
Article contents
Justice in the Garden of Eden
Published online by Cambridge University Press: 30 January 2009
Extract
Legal theory for the purposes of this essay is the theory of mundane law—that is, our law. The legal system of a modern Western democracy is the phenomenon legal theory is trying to represent perspicuously. Such a legal system may be characterized prephilosophically as an institutionalized normative system. The associated institutions include legislatures, courts, police forces, civil services, royal families, and the like. The associated norms are of three kinds—norms directly enjoining, permitting or proscribing behaviour on the part of the norm-subjectss; norms for facilitating the creation of social arrangements between norm-subjects; norms for the creation, variation, administration, application and enforcement of norms of the first two kinds.
- Type
- Research Article
- Information
- Copyright
- Copyright © The Royal Institute of Philosophy 1988
References
1 Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 267.Google Scholar
2 Raz, Joseph, Practical Reason and Norms (London: Hutchinson, 1975), 159Google Scholar. Soper, Philip endorses Raz's claim: A Theory of Law (Cambridge, MA: Harvard University Press, 1984), 145.CrossRefGoogle Scholar
3 Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961), ch. V.Google Scholar
4 That Finnis's view in NLNR is indeed a version of positivism is cogently argued by Green, Leslie, ‘Law, Coordination, and the Common Good’, Oxford Journal of Legal Studies 3 (1983), 299–324.CrossRefGoogle Scholar
5 I am not presenting the theory as believing for my own part it is a correct theory of law, but as believing it to be a possible (and possibly plausible) theory of law. I speak in sections 3–7 in the voice of a defender of a communitarian theory, and shall return in section 8 to my own voice.
6 Cf. here Wittgenstein, , Philosophical Investigations (Oxford: Blackwell, 1958), §§ 240–242Google Scholar, on the vital distinction between agreement in opinion and agreement in judgment.
7 By Sypnowich, Christine, ‘Law as a Vehicle of Altruism’, Oxford Journal of Legal Studies 5 (1985), 276–284, at 281.CrossRefGoogle Scholar
8 The etiolated nature of the lives of Stoppard's Rosenkrantz and Guildenstern is a brilliant illustration of the same point—see Bennett, Jonathan's paper on this topic, ‘Philosophy and Mr Stoppard’, Philosophy 50 (1975), 5–18CrossRefGoogle Scholar; also Shiner, Roger A., ‘Showing, Saying and Jumping’, Dialogue 21 (1982), 624–646.CrossRefGoogle Scholar
9 Cf. Sandel, Michael J., Liberalism and the Limits of Justice (Cambridge University Press, 1982)Google Scholar; the expression ‘unencumbered selves’ is his: MacIntyre, Alasdair, After Virtue, 2nd edn (Notre Dame, IN: University of Notre Dame Press, 1984).Google Scholar
10 Cf. Macpherson, C. B., The Political Theory of Possessive Individualism (Oxford University Press, 1962).Google Scholar
11 Cf. Hart, , Law, Liberty, and Morality (Oxford University Press, 1963), 20.Google Scholar
12 This way of putting the point was suggested to me by Professor John Benson. It seems exactly right, and therefore I am deeply grateful to him. It must not be supposed, though, that he agrees with the view here presented.
13 Earlier versions of this paper were presented to the Welsh Philosophical Society, at the University of Waterloo, and at Pennsylvania State University, Harrisburg. I am grateful to these audiences, and to David Bakhurst, Richard Bronaugh, Antony Duff, Gary Hagberg, Sandra Marshall, Michael McDonald, Christine Sypnowich and Jan Zwicky for criticism and encouragement. I stand as utterly responsible for what remains. The paper is based on research supported in part by the Social Sciences and Humanities Research Council of Canada; I appreciate their assistance.