David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Ethical Theory and Moral Practice 3 (1):9-26 (2000)
How are general relations of law and morality typically conceived in an environment of Anglo-saxon common law? This paper considers some classical common law methods and traditions as these have confronted and been overlaid with modern ideas of legal positivism. While classical common law treated a community and its morality as the cultural foundation of law, legal positivism's analytical separation of law and morals, allied with liberal approaches to legal regulation, have made the relationship of legal and moral principles more complex and contested. Using ideas from Durkheim's and Weber's sociology, I argue that the traditional common law emphasis on an inductive, empirical treatment of moral practices has continuing merit, but in contemporary conditions the vague idea of community embedded in classical common law thought must be replaced with a much more precise conceptualisation of coexisting communities, whose moral bonds are diverse and require a corresponding diversity of forms of legal recognition or protection.
|Keywords||common law community Durkheim law and morality legal positivism Weber|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
G. Pino (1999). The Place of Legal Positivism in Contemporary Constitutional States. Law and Philosophy 18 (5):513-536.
Roger A. Shiner (1992). Norm and Nature: The Movements of Legal Thought. Oxford University Press.
John Arthur & William H. Shaw (eds.) (2010). Readings in the Philosophy of Law. Pearson Prentice Hall.
Leon Petrażycki (2010). Law and Morality. Translation Publishers.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Brian Bix (1993). Law, Language, and Legal Determinacy. Oxford University Press.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Robert Alexy (2002). The Argument From Injustice: A Reply to Legal Positivism. Oxford University Press.
Brian Z. Tamanaha (2001). A General Jurisprudence of Law and Society. Oxford University Press.
Added to index2009-01-28
Total downloads19 ( #90,106 of 1,102,738 )
Recent downloads (6 months)2 ( #182,643 of 1,102,738 )
How can I increase my downloads?